Jharkhand High Court
Mohan Das Pan vs Anita Das on 8 December, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
First Appeal No. 103 of 2019
--------
Mohan Das Pan, s/o Doma Pan @ Kusho Das Pan, r/o village-
Todatopa, PO & PS-Noamundi, District-West Singhbhum at
Chaibasa, at present working at TISCO, Noamundi, Department
IRP (N), P.I.-175068, PO & PS-Noamundi, District-West Singhbhum
at Chaibasa. ... Appellant
Versus
Anita Das, w/o Mohan Das Pan, d/o late Surya Lal Das, r/o
village-Todatopa, PO & PS-Noamundi, District-West Singhbhum at
Chaibasa, at present residing at House No.-149, Shaktinagar
Sector No.-3, PO-Rourkella, PS-Rourkella, District-Sundargarh,
Odisha. ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
--------
For the Appellant : Mr. Anjani Kumar, Advocate
For the Respondent : Mrs. Shruti Shrestha, Advocate
--------
ORDER
th 8 December 2022 Per, Shree Chandrashekhar, J.
Mohan Das Pan has challenged the judgment and decree in Original Suit No. 46 of 2014 (in short, the divorce case).
2. By judgment dated 22nd December 2018, the divorce case which was filed by the appellant for a decree of divorce on the ground of cruelty and desertion has been dismissed.
3. The appellant has pleaded that his marriage was solemnized with the respondent on 19 th July 2007 at Rourkela, Odisha according to Hindu customs and practices. On 20 th July 2007, the respondent came to her matrimonial home and started leading conjugal life peacefully. Two months after the marriage the doctor who was treating the respondent found that the respondent was carrying a baby of two months. This opinion of the doctor gave suspicion in his mind and his family members that the respondent was pregnant on the date of marriage and had some pre-marital illicit relationship with someone. The appellant has further stated 2 First Appeal No. 103 of 2019 that his wife gave birth to a female child on 24 th March 2008 and he bore all the medical expenses even during the pregnancy period. However, the respondent without informing him went to her parental house with all ornaments and valuable articles presented at the time of marriage.
4. It is the case of the appellant that Mahila PS Case No. 18 of 2014 dated 9th February 2014 has been falsely instituted by the respondent against him, his parents, younger brothers, two married sisters and sister-in-law (wife of younger brother) under sections 498-A, 323, 294, 406 read with section 34 of the Indian Penal Code and under section 4 of the Dowry Prohibition Act. He has stated that his mother suffered paralytic attack due to high blood pressure for which she was admitted in TISCO Hospital on 6th June 2010. However, the respondent left her matrimonial home on 9th June 2010 without any rhyme and reason and after that she did not return to her matrimonial home. In the meantime, he came to know that the respondent has been employed as a teacher and is getting honorarium and, as such, she wanted to lead independent life and whenever she was asked to return to her matrimonial home she had flatly refused and did not come back home. On 22nd June 2010, he met with an accident in which he lost his teeth and was admitted in hospital from 22 nd June 2010 to 17th July 2010 but the respondent never came to see his condition.
5. The respondent has resisted the divorce case by filing a written statement denying the allegations. She has stated that she was forced to live with the concubine of her husband in the matrimonial home. In support of her case, she has examined three witnesses.
6. During the trial, the appellant has laid the following documentary evidence:
Exhibit Document Exhibited
Exhibit-1 Formal FIR attached, Sundargarh, Woman Police Station Case
No.2014/18 dated 09.02.2014
Exhibit-2 Original Disability Certificate dated 03.09.2014
Exhibit-3 Original Ultrasound Report issued on 19.10.2007
Exhibit-X Medical Service Book of Mohan Das Pan
3 First Appeal No. 103 of 2019
Exhibit-X1 Fitness Certificate of Mohan Das Pan
Exhibit-X2 Medical Service Book of Mohan Das Pan
Exhibit-X3 Marriage Invitation Card of Mohan Das Pan with Kumari Anita
Exhibit-4 Birth Certificate of Ansh Pan, S/o Lopo Pan
7. The respondent has also produced documentary
evidence, which are as follows:
Exhibit Document Exhibited
Exhibit-Y Photocopy of the plaint of Civil Proceeding No. 235/2013, Family
Court Rourkela
Exhibit-Y1 Photocopy of prescription of Anita Das, TISCO Hospital, Noamundi
Exhibit-Y2 Photocopy of prescription of Anita Das, TISCO Hospital, Noamundi
Exhibit-Y3 Discharge Report of Ansh Pan, Tata Hospital, Noamundi
Exhibit-Y4 Prescription of out-door patient Mukta
Exhibit-Y5 Discharge Report of Anita Das, Tata/TISCO Hospital, Noamundi
Exhibit-Y6 Panchnama
Exhibit-Y7 Letter of Anita Das to Moha Das Pan, defendant
Exhibit-Y8 Engagement Order No. 1257/S.S.A dated 19.04.2011
Exhibit-Y9 Photocopy of Pathological examination of Mukta, Tata Steel
Hospital, Noamundi
Exhibit-Y10 Service Registration Number O.P.D. of Ansh Pan, Tata Steel
Hospital, Noamundi
Exhibit-Y11 Scanning Report of Anita Das, Om Scanning Tungri, Chaibasa
Exhibit-Y12 Prescription for out-door patient of Anita Das, Tata TISCO Hospital,
Noamundi dated 14.05.2010
Exhibit-Y13 Marriage expenses transaction of borrowed amount (proof)
Exhibit-Y14 Details of list related to marriage dated 21.07.2007 (proof)
Exhibit-Y15 Prescription of Anita Das dated 12.09.2018, Tata TISCO Hospital,
Noamundi
Exhibit-Y16 Prescription of Anita Das dated 10.03.2009, Tata TISCO Hospital,
Noamundi
Exhibit-Y17 Photograph of Mukta
Exhibit-Y18 Aadhar Card of Mohan Das Pan
Exhibit-Y19 Voter Identity Card of Mohan Das Pan
Exhibit-Y20 Salary Slip of Mohan Das Pan
8. On the basis of pleadings of the parties, the Family Court has framed the following seven issues for determination:
1. Whether the suit as framed is maintainable?
2. Whether the plaintiff has got cause of action for the suit?4 First Appeal No. 103 of 2019
3. Whether the plaintiff has been treated with cruelty by the defendant?
4. Whether the defendant had illicit relationship with any other person before marriage ?
5. Whether the plaintiff is natural father of the girl child namely Anuska alias Kusum or not?
6. Whether the plaintiff has been deserted by the defendant?
7. To what other relief or reliefs the plaintiff is entitled?
9. The Family Court has held that the appellant failed to establish cruelty of such nature as envisaged under clause (i-a) to sub-section (1) to Section 13 of the Hindu Marriage Act so as to make him entitled for a decree of divorce. The Family Court has further held that the appellant who levelled unfounded allegations of unchastity against his wife is guilty of matrimonial misconduct.
10. With respect to issue no.3 and related issue nos.4 and 5, the Family Court has held as under:
"8. Issue no.3 This issue is related with the point as to whether the plaintiff/applicant has been treated with cruelty by the defendant.
Since issue nos. 1, 2, 7 have been negatively decided against the plaintiff and accordingly, neither the claim of the plaintiff is legally maintainable nor the plaintiff has a valid cause of action to file the suit nor the plaintiff is entitled for any relief, under the circumstances, question of cruelty to the plaintiff by the defendant does not arise.
9. Issue no.4 This issue is concerned with the point as to whether the defendant /defendant had illicit relationship with any other person before the marriage.
In the order to adjudicate Issue Nos. 1 and 7, it has been found by the court under the judicial notice that the child namely Anushka alias Kusum born from both parties is a legitimate child. It is revealed from the report submitted by the Forensic Science Laboratory, Ranchi and period between date of marriage and date of birth of child, the child is legitimate.
As a result, this issue is negatively decided against the plaintiff.
10. Issue no.5 This issue is related with the point as to whether the plaintiff is the biological father of the baby girl Kusum or not?
Since it has been found in the report submitted by the Forensic Science Laboratory, Ranchi under judicial notice by the court in accordance with the decision of issue no.1, 7, 4 that the said child is the child born out of the sperm and egg of both the parties, it is clear from this report that the plaintiff is the biological father of Anushka alias Kusum.
As a result, this issue is decided negatively against the plaintiff and in the favour of the defendant."5 First Appeal No. 103 of 2019
11. With respect to desertion the Family Court has held as under:
"11. Issue no. 6 This issue is related with the point as to whether the defendant/defendant has deserted the applicant/plaintiff.
Since it has been found by the court under the Judicial Notice during the decision of issue no. 1, 2, 3, 4, 5 and 7 that the plaintiff has also got medically treated the defendant during her pregnancy, has brought up the born child as his own daughter, he has also maintained his wife and daughter from time to time by giving required money. From time to time, the defendant has also served her mother-in-law by coming to the plaintiff's house and the plaintiff himself often bring a woman named Mukta Devi and due to which, the balance of the family environment has been disturbed. There is no such conduct of the defendant which indicates that she has deserted her husband, rather the conduct of the plaintiff/husband is such that it has created obstacles in their happy married life. It is confirmed from the evidence of Shakuntala Pan, the plaintiff's own sister, examined as Defendant witness no.1 of the opposite party/defendant. Thus, defendant/defendant has never deserted her husband.
As a result, this issue is decided negatively against the plaintiff."
12. The aforesaid findings recorded by the Family Court have been challenged by the appellant on the ground that the Family Court has failed to appreciate the evidence produced by him in proper perspective.
13. With reference to the judgments in "Sanat Kumar Agarwal v. Smt. Nandini Agarwal" AIR 1990 SC 594 and "Om Prakash Poddar v. Rina Kumari" (MAT. APP. 7/2012), Mr. Anjani Kumar, the learned counsel for the appellant would submit that the respondent's staying away from the company of the appellant for a period of about 10 years would amount to cruelty and constitute desertion.
14. Per contra, Mrs. Shruti Shrestha, the learned counsel for the respondent has submitted that irresponsible and wild allegations of adultery levelled against the respondent constitute cruelty which in itself is a ground for dismissing the divorce case.
15. During the trial, the appellant has examined three witnesses and he himself deposed as PW1. He has stated that as per the wishes of her mother the respondent gave birth to a baby girl at Ispat General Hospital, Rourkela for which he had borne all the expenses. He has further stated that the respondent who grew up in a big city like Rourkela could not adjust to the rural 6 First Appeal No. 103 of 2019 environment of her matrimonial home and for this reason she used to quarrel with him. The respondent mentally harassed him by implicating his entire family in a false case and she deserted him for a period of more than six years. In the cross-examination, he has denied that the entire cost of the hospitalisation of the respondent was borne by his mother-in-law. He has, however, admitted that he didn't make his wife his nominee in the service book because she never stayed with him for more than fifteen days and she always quarreled with him and even went to the police.
16. The maternal uncle of the appellant who deposed as PW2 has stated that the parents of Mohan Das Pan told him that the respondent did not want to stay in her matrimonial home, wanted to live permanently in Rourkela and also that she did not want to take care of the appellant's parents. He has further stated that the appellant told him that he had gone to Rourkela to bring his wife back to matrimonial home but his wife and her family members misbehaved with him.
17. The respondent has stated that she graduated in science and did teacher's training and that the marriage has been arranged with the blessings of both the families. In her cross- examination, she has stated that she used to take care of her mother-in-law who is an old woman and is bedridden for almost three-four years, and that, even after leaving the matrimonial home she did not stop meeting her husband rather she kept frequently visiting her matrimonial home.
18. Shakuntala Pan who is the sister of the Appellant deposed as DW1 and has stated that the dispute between her brother and sister-in-law had increased to such an extent that for the sake of peace her sister-in-law was sent to her maternal home. She has further stated that the respondent has not been living with her brother for almost five years. In her cross-examination, she has denied asking the appellant for a share in their father's property but has stated that the appellant had an illicit relationship with another woman. Mithun Das, the cousin brother of the appellant, 7 First Appeal No. 103 of 2019 has also fully supported the case of the respondent, when he tendered evidence as DW3.
19. What constitutes cruelty has not been defined in the Hindu Marriage Act. However, the expression cruelty has a definite meaning through judicial pronouncements. Cruelty as envisaged under section 13 (1) (i-a) of the Hindu Marriage Act which provides a ground for divorce must be such acts which are more serious than ordinary wear and tear of marriage. This has also now been accepted that cruelty can be inflicted not only through physical violence but through such other acts, omissions or conduct of a spouse which may cause such mental pain and suffering which would make it impossible for the other party to live together.
20. Similarly, character assassination of the wife by the husband has not been taken well by the Courts and levelling disgusting and unfounded accusations of unchastity through unsubstantiated allegation of extra-marital relationship has been considered grave assault on the character, honour and reputation of the wife. Therefore, wherever it is found that the husband has disowned the child born out of the wedlock such fact has been considered sufficient by the Court to hold him not entitled for a decree of divorce.
21. In "Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate" (2003) 6 SCC 334 the Hon'ble Supreme Court has observed as under:
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to 8 First Appeal No. 103 of 2019 cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
22. The Family Court has taken note of the report dated 26.10.2018 of the Director, Forensic Science Laboratory, Ranchi, Jharkhand which was made available at the request of the appellant and held that Anushka @ Kushum is a legitimate daughter of the plaintiff.
23. The Family Court has held as under:
"6. ...Thus, the witness in his examination-in-chief has alleged that the opposite party was already pregnant due to her illegal relationship with another man before marriage, due to which a female child was born on 24.03.2008, whereas the marriage of both parties was held on 19.07.2007 and the report dated 26.10.2018 of the Director, Forensic Science Laboratory, Ranchi, Jharkhand is available on the record. This report was made available at the request of the plaintiff and the plaintiff did not give stress on this report nor any objection was raised by either of the parties and it is the duty of the court here to examine this report very carefully in the interest of justice, and it appears from minute perusal of this report that Anushka @ Kushum is a legitimate daughter of the plaintiff and the defendant, and the period from the date of marriage to the date of birth of the child is itself proving that the born child is a legitimate because human's child is generally born in 9 months of pregnancy. Apart from this, the child is also born in the seventh or eighth months of the pregnancy. In this way, the allegation of the plaintiff side that the defendant had illegal relationship with another man before marriage and the child born is an illegitimate child appears to be baseless and in the opinion of the court, it is not the defendant but the plaintiff side itself who has committed the criminal act of cruelty and torture by slandering the defendant's character, and the accusation of the plaintiff that the defendant was giving mental harassment and cruelty to the plaintiff and his family members appears to be completely imaginary because if the defendant had got the love of her husband and his family members, then she would have not lived in her mother's house, nor would she have filed the maintenance suit and criminal cases against the plaintiff and his family members. ..."
24. In our opinion, the appellant has failed to establish cruelty and desertion on the part of his wife. The incidents of cruelty narrated by the appellant are not sufficient to constitute the ground of cruelty. On the contrary, it has come on record that he levelled unfounded allegations of adultery against the respondent. The evidence of the respondent offers a reasonable cause for her not living in the matrimonial home. The witnesses produced by the appellant have also not supported him, rather corroborated the stand taken by the respondent.
9 First Appeal No. 103 of 201925. In view of the aforesaid discussions, First Appeal No. 103 of 2019 is dismissed.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 8th December 2022 Amit/ N.A.F.R