Jharkhand High Court
Unknown vs Sumita Banerjee on 7 August, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
1
Appeal from Original Decree No. 137 of 2016
[Against the dismissal of Matrimonial Suit No. 138 of 2007 by the
learned Court of Principal Judge, Family Court, East Singhbhum
at Jamshedpur by judgment dated 28.04.2016, decree dated
12.05.2016]
B.K. Banerjee ... Appellant
Versus
Sumita Banerjee ... Respondent
--
CORAM :- HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA ...
For the Appellant : Mr. Indrajit Sinha, Advocate;
Mr. Harshvardhan, Advocate.
For the Respondent : Mr. Anurag Kashyap, Advocate;
Mr. Abhilash Kumar, Advocate.
...
By Court:
1. Heard learned counsel for the parties.
2. Appellant is the husband aggrieved by the dismissal of his Matrimonial Suit No. 138 of 2007 by the learned Court of Principal Judge, Family Court, East Singhbhum at Jamshedpur by judgment dated 28.04.2016, decree dated 12.05.2016 whereunder the suit for divorce instituted on grounds of adultery and cruelty in terms of Section 13(1) (i-a) of the Hindu Marriage Act was dismissed.
3. Brief facts of the rival parties as are culled out from the pleadings on record are being referred to hereinafter for appreciating the issues in controversies.
Parties entered into nuptial knot on 15.07.1985 as per Hindu rituals. No issue was born out of the wedlock. Appellant alleged repeated taunt and sarcastic remarks by the respondent and fault finding nature. She used to threaten him of implication in false cases and destroy his life and career. Efforts to mend her ways failed. She alleged illicit relationship of the petitioner with other woman and used to abuse him in filthy language. Since 11.05.2007 i.e. one month prior to filing of the present suit, petitioner left the house and had been living separately with his mother. He had also filed informatory petition against the respondent before the learned CJM, Jamshedpur. He was working 2 as Driver in South-Eastern Railway and his long duty hours kept on varying as per train timings. He had suffered enough on account of physical and mental cruelty which had compelled him to seek a decree of divorce.
4. Respondent through her written statement denied the entire allegation made in the plaint. She admitted the marriage and absence of any child born out of the wedlock. She asserted of being loving and caring wife and being beautiful towards her in-laws. She alleged torture at the hands of the petitioner both physically and mentally and his extra- marital relationship with another lady, which was the reason of neglecting her. She also stated having filed complaint case before the Parsudih Police Station where the petitioner undertook not to have any extra-marital relationship. However, he did not correct himself and finally G.R. No. 1721 of 2007 was lodged under Sections 498A/ 385/ 504 of the Indian Penal Code. As per the respondent, she has always honoured the request and demand of her husband but it is he who has been responsible for her negligence, which has put her to starvation at times and destitution. For all these grounds, facts and reasons, she prayed for dismissal of the suit.
5. Following issues were framed by the learned Family Court for adjudication on the basis of rival pleadings of the parties:
I. Whether the suit as filed and framed maintainable in its present form?
II. Whether the petitioner has valid cause of action to sue? III. Whether the respondent treated the petitioner with cruelty after solemnization of the marriage?
IV. Whether the petitioner is entitled to the reliefs as sought for?
V. To what other relief or reliefs the petitioner is entitled to?
6. During the course of trial, petitioner examined himself as PW-1, one Vikaram Biragya as PW-2 and Swapan Dutta as PW-3.
Respondent examined herself as RW-1 and Gouri Ghosh as RW-2.
7. Petitioner supported his case through examination-in-chief on affidavit. He reiterated the allegations of quarrel by the respondent on trifle domestic issues and continuous ill-treatment upon the petitioner, who took rented accommodation at Parsudih but there also the landlord asked him to vacate the premises on account of the misconduct of his wife. She shifted to single-storied building in the year 1998. Respondent persisted to get the house transferred in her name but on refusal she 3 misbehaved with him. He had to take food from hotel as she often did not cook food for him. She prevailed upon him to sever relationship with other family members. On account of death of his close friend Vishwanath Paul in the year 2002, he extended all help to his widow Rikta Paul in getting her settlement amount LIC etc. which raised suspicion in the mind of respondent of his illicit relationship. He was compelled to stop visiting the house of Rikta Paul due to day to day quarrel with her. Rikta Paul left Jamshedpur with her son and daughter and is residing at Srirampur, Hoogli, West Bengal. He further alleged that he was compelled to sign a written paper before Parsudih Police Station. His wife had joined politics and did not take care to look after him. On 11.05.2007, he was denied entry in the house at midnight after return from the Railway Station, as such, he had to spend whole night at the Railway Station. Thereafter, he has been staying at Sonari with his mother. He also stated about the informatory petition filed against the respondent. He was aware of the Parsudih Police Station Case filed on 20.07.2007, which was filed after lodging of the instant suit. He had been arrested on 11.05.2008 and granted provisional bail on 07.07.2008, certified copy of which was also filed. He has been sending Rs.2,000/- as maintenance to her, who is staying at his house in Parsudih where his motorcycle and Maruti car are also lying in her custody. In his cross-examination, he stated that Parsudih house was constructed by him and they last resided on 09.05.2007. Thereafter, he is residing at Sonari. He further stated that they had love marriage since he knew her since 1976. He has been paying maintenance in terms of the Court's order. He has joint account of two ATMs- one with his wife. His gross salary is Rs.25,000/- and net salary Rs.20,000/-. His wife is employed. His mother is alive. PW-2 Vikaram Biragya filed his examination-in-chief on affidavit but did not turn up for cross- examination, therefore, his evidence was ignored. Swapan Dutta PW-3, a neighbour of the petitioner stated during examination that he knew both the parties, who were residing at Parsudih. He spoke about the incidence of May, 2007 when applicant-petitioner was not permitted to enter the house. He also stated about abuses being hurled by her in filthy language on the petitioner. During cross-examination, he stated having retired from Tata Motors in 2008 and has been living since 2010 at Howrah. He is not aware of any activity between the parties after 4 2010. He had invited the petitioner in a family function where he was ready to resolve the dispute and wanted to live with his wife. Even on the date of the evidence, petitioner had stated that he is ready to live with his wife, but he was not aware whether respondent wanted to reside with him.
8. Respondent RW-1 on affidavit in examination-in-chief supported her case made out in the written statement. During her cross- examination, she accepted having known her husband and his family since 1974. She further stated having lived with her husband in his parental home but after his marriage, his mother accompanied her daughter and thereafter they shifted to Parsudih where a house was constructed by her husband. They had shifted to the new house. House was constructed by taking loan where she was a guarantor. It is a double-storied building where she had shifted in 1996-97 and presently residing alone. Her husband is residing separately at Parsudih since 2007. She had filed criminal case and stated that he left her in the year 2007. He is staying with his mother in the house of his sister. He had accompanied the wife of his friend in the year 2002 after his death and then came back to Jamshedpur after few days. He had also given an undertaking that he will not have an extra-marital relationship. At para- 14, she stated having filed a case under Section 498A of the Indian Penal Code but did not remember whether she opposed the prayer for bail before the High Court or not. She accepted having ATM Card of a joint A/c in SBI from where she had withdrawn Rs.14,500/-. She stated that motorcycle and Maruti car are in the house but the original and duplicate keys are with her husband, who on his own volition is not taking those vehicles. She denied the suggestion that her husband used to send money through money order from May to July, 2007, which was refused by her. RW-2 Gouri Ghosh, family friend of the respondent and resident of the same locality spoke about the marriage and the good relationship between the spouses. She stated that respondent is an orthodox lady, who wanted to live happy conjugal life and did not indulge in any act as alleged by the petitioner. She also stated about the extra-marital relationship of the petitioner and the resultant neglect of the respondent. Respondent had been living alone since 2007. She was a social worker and knew the respondent since last 18 years. She does not know since when and where husband of the respondent is living. In 5 her cross-examination she stated that she does not know the meaning of illicit relationship.
9. The following exhibits were adduced by the petitioner:
"Ext.1 is the certified copy of FIR;
Ext.2 is certified copy of charge sheet; Ext.3 is order sheet of B.A. No. 4181 of Hon'ble High Court of Jharkhand;
Ext.4 is the application dated 06.02.2007; and Ext.5 series are money order receipt."
10. Both the rival parties made submission in support of their case before the Family Court and relied upon judgments to contest the plea of adultery and cruelty in marriage. Upon discussion of the material evidence on record in the light of the pleadings of the parties, learned Family Court proceeded to hold that allegations of cruelty were vague and that illicit relationship of the petitioner with a lady was not proved. Ext.4 was an undertaking on behalf of the petitioner not to keep any relationship with such lady. He had failed to show that Ext.4 was executed under duress and failed to make out any other case of cruelty. The informatory petition lodged by the petitioner only indicated apprehension of false implication in cases by the respondent and therefore to save his life, he left the house and is living separately. Later on, petitioner tried to set up a new case that she had refused him entry into the house, which was not creditworthy. Parties have been living together since their marriage in 1985 but the plea of cruelty has been raised in the year 2007 alleging cruelty since after the marriage itself which remain unsubstantiated. Learned Family Court therefore disbelieved the grounds set up by the petitioner. Learned Court in the facts of the case could not come to an opinion that the marriage had irretrievably broken down. Desertion of two years before presentation of the plaint was also not proved. Based on the aforesaid findings and the discussions made, the suit was dismissed.
11. Learned counsel for the appellant has brought on record a development which has taken place during pendency of this appeal through Interlocutory Application No. 5313 of 2018. Petitioner/appellant stands acquitted of the charges under Sections 498A and 504 of the Indian Penal Code by the learned Additional Sessions Judge-I, East Singhbhum, by judgment dated 26.05.2018 passed in Criminal Appeal No. 243 of 2012. The learned Trial Court had convicted the husband for 6 the offence under Section 498A of the Indian Penal Code with a sentence of rigorous imprisonment for one year and a fine of Rs.2,000/- and under Section 504 of the Indian Penal Code with a sentence of one year rigorous imprisonment.
12. Learned counsel for the appellant submits that the falsity of the accusation has been established on account of the acquittal by the learned Appellate Court. Appellant has undergone tremendous persecution and loss of reputation on account of unfounded allegations over a period of five years since institution of Parsudih P.S. Case No. 112 of 2007 by the respondent-wife and that too instituted after filing of the matrimonial suit. Appellant had also been in custody in connection with the aforesaid allegations which has tarnished his image in the eye of his relatives, close friends and the public at large. This cannot be compensated in any manner now.
13. Learned counsel has relied upon the judgments of the Apex Court in support of his submission that making of unfounded defamatory false accusation constitute mental cruelty. He has relied upon the cases of K. Srinivas Rao Versus D.A. Deepa, reported in (2013)5 SCC 226 para- 16 ; K. Srinivas Versus K. Sunita, reported in (2014)16 SCC 34 para 3; and Narendra versus K.Meena, reported in (2016) 9 SCC 455, para-18.
14. Learned counsel for the appellant has also relied upon the judgment of the Apex Court in the case of Vishwanath Agrawal versus Sarla Vishwanath Agrawal, reported in (2012) 7 SCC 288 in support of his submission that event, subsequent to filing of the divorce petition, can be taken into consideration to come to an opinion of cruelty in marriage as against the suffering spouse. He has also referred to the judgment of the Apex Court dealing with illustration which established mental cruelty i.e. Samar Ghosh versus Jaya Ghosh, reported in (2007) 4 SCC 511, para 99 to 101.
15. Learned counsel submits that the look of the case undisputably goes to show that there are no emotional bonds alive between the spouses which could be nourished to lead a normal conjugal life. Marriage has practically been rendered dead. If the marriage is not dissolved, it would prolong the suffering of either of the spouses and would keep alive only a legal tie when all emotional ties have dried up.
7The charge of cruelty now stands conclusively established in view of the judgment of acquittal rendered by the Appellate Court on such false allegations of cruelty in marriage and criminal intimidation. As such, the appeal deserves to be allowed on the grounds of cruelty.
16. Learned counsel for the respondent has supported the findings rendered by the Family Court. He submits that the evidence of the parties were well-considered and findings on each of the allegations of adultery, cruelty and desertion were unsubstantiated by any cogent evidence adduced on the part of the petitioner. It is the conduct of the petitioner which has compelled the wife to remain alone though in the house of the petitioner-husband. Learned counsel has, however, not been able to overcome the plea raised by the appellant on the subsequent events that have taken place on acquittal of the appellant of the charges under Sections 498A/ 504 of the Indian Penal Code by the learned Court of Additional Sessions Judge-I, East Singhbhum in Criminal Appeal No. 243 of 2012 by judgment dated 26.05.2018. He is also not able to dispute that the parties have been living separately at least for last eleven years by now though they had a love marriage in the year 1985 and the relationship was more or less congenial earlier till it became worse. He, however, submits that the appellant should not be allowed to take advantage of his own wrong.
17. We have considered the submissions of the learned counsel for the parties, gone through the impugned judgment and the relevant material evidence relied upon by them as well. We have also taken note of the subsequent event of acquittal of the appellant in Criminal Appeal No. 243 of 2012 by the learned Appellate Court of the charges under Sections 498A/ 504 of the Indian Penal Code. We have scrutinized the pleadings of the parties and the evidence adduced by them on the issues framed by the learned Family Court i.e. relating to cruelty in marriage and also on allegations of adultery as well as desertion. On the basis of the material evidence which were available on record before the learned Family Court, the findings in relation to desertion do not appear to suffer from any error or misappreciation of evidence. The suit was filed without waiting for the mandatory period of separation of two years as required under Section 13(1) (i-b) of the Act of 1955. Allegations of adultery by the petitioner or the respondent also do not seem to have been substantiated except that Ext.4 showed an 8 undertaking on the part of the petitioner not to maintain any relationship with the another lady. Another lady was supposedly the wife of close friend of the petitioner, who had unfortunately died in 2002. We cannot draw an inference on such perfunctory material evidence in relation to a serious charge of adultery. However, there were certain conspicuous facts on record even during the trial in relation to the charge of cruelty. Petitioner on his part had been able to show that wife-respondent was staying in his own double-storied house at Parsudih while he had to stay along with his mother and sister at another place in Sonari. His motorcycle and Maruti-800 Car were also lying in the same house where the respondent was staying. It has also been accepted by the respondent that she was having an ATM Card of a Joint Account maintained between the spouses from which she had drawn certain amounts as well. She, however, denied having refused any maintenance amount sent by him between the period May, 2007 to July, 2007. The appellant, on the other hand, had been subjected to judicial custody on account of accusations made in G.R. Case No. 1721 of 2007 for the offences of cruelty in marriage in relation to demand of dowry and criminal intimidation i.e. under Sections 498A/ 385/ 504 of the Indian Penal Code. It is also not in dispute that the instant FIR was lodged by the respondent after institution of the matrimonial suit by the petitioner. Petitioner got bail as per Ext.3 in B.A. No. 4181. He had suffered loss of reputation and incarceration for a charge, which ultimately proved to be false. Allegations of cruelty were made casually but the respondent failed to establish it during the criminal proceedings at the stage of appeal. The learned Appellate Court has after discussion of the entire evidence on record found that four witnesses were adduced by the prosecution of whom PW-2 turned hostile and PW-4, neighbour of the informant denied having any personal knowledge of such incidences. It also took into note the evidence of the informant that she has been living in the house constructed by the petitioner-husband while he has been living separately for eight years along with his parents away from her. The widow lady Rikta Paul had left Jamshedpur in the year 2007 and gone to West Bengal. Her husband, the accused, had been living separately from her since 2007 along with his parents and before that during the period 2002-2007 also used to visit her at intervals of fifteen days or one month but did not take any food at his 9 house. There were Joint Accounts in the name of the spouses from which she had also withdrawn Rs.14,500/- in 2007. None of the independent witnesses supported the allegations of illicit relationship of the accused with Rikta Paul. No other evidence was adduced to support the allegations of assault or torture by the petitioner. Learned Appellate Court also found no reason for the respondent to institute a case of cruelty on allegations of physical, mental and financial torture since 2002 by instituting a case in 2007. No evidence was either adduced to establish the allegations of demand of dowry and resultant torture. No witnesses could adduce any evidence to prove the nature of allegations of frequent quarrel and torture and loss of peace on the part of the accused husband. As such, learned Appellate Court came to a finding that prosecution had failed to establish the charges beyond shadow of all reasonable doubt. The husband was acquitted of the charges. In such way, he has been acquitted of the serious charge of cruelty in marriage on non-fulfilment of demand of dowry and criminal intimidation on 26.05.2018 after having suffered prosecution for unfounded defamatory and false accusations since the institution of Parsudih P.S. Case No. 112 of 2007. This FIR was instituted only after the filing of the matrimonial suit.
18. We, therefore, find substance on the plea raised on behalf of the appellant that the conduct the respondent-wife has entailed enough mental cruelty upon him and that too for sustained period of 10-11 years. It would be proper to rely upon the illustrative examples of mental cruelty as enumerated by the Apex Court in the case of Samar Ghosh (Supra) at Para-101. Para-101 of the report is quoted hereunder:
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of 10 manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of some spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be aground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of the wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty".
19. Reliance is also placed upon the opinion of the Apex Court at Para- 16 in the case of K. Srinivas Rao Versus D.A. Deepa (Supra) 11 where the Apex Court had also considered it proper to add one more illustration to those enumerated in the case of Samar Ghosh i.e. making of unfounded defamatory false accusation by a spouse against the other would, in the facts and circumstances of the case, amount to mental cruelty. Para-16 is quoted hereunder:
"16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
20. The subsequent development of acquittal of the appellant during pendency of the appeal can be taken into account in the light of the observations made by the Apex Court in the case Vishwanath Agrawal (Supra), the judgment rendered in a case of matrimonial dispute itself.
21. On a comprehensive review of the entire matrimonial life of the parties, especially, for the last 11 to 15 years by now, it is evident that there are no chances of their reunion. Both of them have taken an intractable stand because of soured relationship. There are no emotional bonds left to be ignited in such a dead relationship. Marriage, as such, also appears to have reached an irretrievable broken down. No purpose would be served by keeping the legal tie alive in those circumstances. As such, the appeal is allowed. Marriage between the parties stands dissolved on the ground of cruelty. Impugned judgment and decree dated 28.04.2016 and 12.05.2016 respectively are set aside. Decree accordingly. I.A. No. 5313 of 2018 stands closed.
(Aparesh Kumar Singh, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, Dated-7th August, 2018, Sharda/S.B -NAFR