Jharkhand High Court
Putul Baral vs Uttam Baral on 27 February, 2020
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(CIVIL APPELLATE JURISDICTION)
.....
F.A. No. 122 of 2016 ......
Putul Baral ...... Appellant
Versus
Uttam Baral ..... Respondent
PRESENT
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant : Mr. Saibal Mitra, Advocate
For the Respondent : Mrs. Nivedita Kundu, Advocate
.......
By Court: Heard, learned counsel for the parties.
2. Appellant is the wife aggrieved by the judgment and decree of divorce dated 19.05.2016/10.06.2016 rendered by learned Principal Judge, Family Court, East Singhbhum at Jamshedpur in Matrimonial Suit No.125 of 2008 instituted on the grounds of cruelty under Section 13 (i-a) and 13 (1-A) of the Hindu Marriage Act, 1955.
3. Briefly stated the case of the parties is as under. As per the petitioner/respondent herein marriage was solemnized on 01.05.1995 as per Hindu Rites and Customs and two sons were born out of the wedlock on 21.10.1997 and 14.06.1999 who are residing in the custody of the wife. Allegedly the wife left the matrimonial home at Barabazar without intimation and showed completely disinclination to lead a conjugal life since she belongs to Jamshedpur which is a developed township while the petitioner was resident of a smaller town in Purulia District. However, petitioner-husband tried for restitution of conjugal rights by instituting Matrimonial Suit No.39 of 2000. It was decreed ex- parte. Though the appellant-wife filed F.A. No.1670 of 2005, but she could not get any stay. Therefore, petitioner prayed for dissolution of the marriage.
4. Defendant-wife contested the case by filing written-statement and denied the allegation that she had refused to resume conjugal life. She alleged regular torture and assault on failure to fulfill the demand of dowry of Rs.50,000/-. She contended that on 26.03.2000, she was taken by her father along with her children to the parental house at Jamshedpur, but subject to the condition that father of the husband would return the 2 undertaking documents dated 14.08.1997 executed by parents of the applicant before the Officer In-charge, Barabazar P.S. and on the condition of payment of Rs.50,000/- as dowry. Resumption of conjugal life could not take place because of such pre-conditions. Wife also alleged demand of Rs.20,000/- and stated that Rs.15,000/- was paid by her father. However, these demands never ended and the wife was compelled to leave for her parental home at Jamshedpur. She also apprehended that she would be put to death by poisoning. She had also filed a case under Section 127 of the Cr.P.C. which was pending at the time of filing of the written statement. She contended that the order of restitution was stayed by the High Court. Petitioner was earning handsome amount of a sum of Rs.18,000/- per month from running a jewellry shop. He was only trying to escape from his liability to pay alimony. Therefore, the defendant-wife prayed for dismissal of the suit.
5. Based on the rival submissions of the parties, the following six issues were framed for adjudication:-
(i) Is the suit as framed maintainable?
(ii)Whether the applicant has a valid cause of action?
(iii) Whether the respondent did not join the company of the petitioner despite the decree for restitution of conjugal rights?
(iv) Whether the decree of restitution of conjugal rights have been stayed by the Hon'ble High Court?
(v) To what relief or reliefs the petitioner is entitled to? On recast additional issues were framed which is hereunder:
(vi) Is the applicant entitled for a decree of divorce?
6. Petitioner-husband examined two witnesses, one himself and one Subhash Mahato, a common friend. He supported the case made through his plaint and stated that his wife is residing in her parent's home since 27.03.2000. He has been making payments of maintenance to his two sons and the wife. He also spoke about filing of a criminal case against him and his family members on allegations of cruelty in marriage under Section 498A of the I.P.C. The second witness for the husband also supported his case. According to him, the wife had not returned to the marital home since March, 2000. He stated that he had knowledge of the criminal case and that the husband had been acquitted by the appellate Court in Cr.M.P. No.1822 of 2007. On behalf of the wife, several 3 witnesses were examined. Raghu Chandra Manjhi is her father who supported her case in examination-in-chief on affidavit. He also stated about cruelty inflicted upon her by the husband which was the reason for leaving the matrimonial home. He admitted that she is residing since 27.03.2000 with him and there is no relationship with her husband. He also accepted the birth of two sons who were residing with them and that a case for guardianship of the two children was instituted at the Court at Purulia. He also accepted filing of the case under Section 498A of the I.P.C. and that maintenance amount was also being paid. The wife examined herself in support of her case and stated that the matrimonial suit was transferred to the Family Court, Jamshedpur from Purulia pursuant to the orders of the Hon'ble Supreme Court of India. She expressed her desire to live with the husband, but with the condition that she should not be assaulted or tortured for demand of dowry. She stated that she has not been putting vermillion on her head, as her husband had asked her not to put it. At the time of her deposition, she stated that she has been residing since last 12 years in her parents house. She also accepted payment of maintenance @ Rs.750/- per month. She made reference to the education of two sons staying with him which involved considerable expenditure. She complained that her husband had never come to take her back to the matrimonial home. She admitted having filed a case under Section 498A of the I.P.C. She accepted that husband had been acquitted in the said case. The judgment of the appellate Court passed in Crl. Appeal No.4 of 2007 was adduced as Exhibit-1. Xerox copy of the judgment and decree passed in Matrimonial Suit No.39 of 2000 was adduced as Exhibit-2.
7. Based on the materials on record and the evidence adduced by the parties, learned Family Court came to the conclusion that the suit was fit to be decreed both on grounds of failure to restitute the marriage in compliance of the judgment and decree passed in Matrimonial Suit No.39 of 2000 and also on account of acquittal of the husband of the charges under Section 498A of the I.P.C. There was nothing on record to show that the respondent-wife had obtained an order of stay of the decree of restitution of conjugal rights or that it had been varied later on. Accordingly, the suit was decreed.
8. Learned counsel for the appellant has questioned the findings 4 rendered by the learned Family Court on both counts. He submits that on account of institution of the criminal case, the appellant-wife had reasonable cause to stay away from the matrimonial home and, therefore, the decree of restitution of marriage could not be adhered to on her part. Learned counsel for the appellant does not dispute that the respondent- husband and his family members have been acquitted of the charges under Section 498A I.P.C. vide judgment passed in Criminal Appeal No.4 of 2007. It has also been brought to the notice of the Court that the judgment rendered in the Criminal Appeal has been affirmed by the Apex Court on challenge on her behalf.
9. Learned counsel for the appellant submitted that the appellant-wife is still inclined to maintain conjugal ties and go back to her matrimonial home. Therefore, an attempt can be made at this stage for amicable settlement of the dispute between the spouses. The appeal may be allowed on these grounds.
10. Learned counsel for the respondent-husband has strongly opposed each and every contention of the appellant. She submits that the marriage could not survive because of the neglect and indifferent conduct of the wife since she went back to the matrimonial home after birth of two children in the year, 1997 and 1999. The husband made all efforts to restitute the marriage by moving the Family Court in Matrimonial Suit No. 39 of 2000 but in spite of the decree passed against her, she never made any attempt to restitute the matter. The wife in fact preferred an appeal being F.A. No.1670 of 2005 before Kolkata High Court. However she could not get any stay in the said appeal. This showed her disinclination to resume the conjugal life. On the other hand, she instituted a criminal case with allegations of cruelty and marriage under Section 498A of the I.P.C. before the court at Jamshedpur after filing of the suit for restitution of conjugal rights. Though the husband and his family members were convicted by the trial court but all of them have been acquitted by the appellate court in criminal appeal no.4 of 2007. The Apex Court also declined to interfere in the judgment of acquittal. It is submitted that the parties have been living separately for 20 years and more by now and there is complete break down of marriage. The marriage cannot be retrieved as there is no emotional bonds or love and affection left between the spouses. Both sons have also grown major.
5Husband is regularly paying maintenance to the wife. Acquittal of the husband and his family members on such serious charges of cruelty in marriage under Section 498A of the IPC clearly shows that the appellant had made false accusations. He has relied upon the decision of the Apex Court in the case of K. Srinivas vs. K. Sunita, reported in (2014) 16 SCC 34 para 5, in which the case of K. Srinivas Rao vs. D.A. Deepa, reported in (2013) 5 SCC 226 has also been relied upon. It is submitted that in those circumstances the findings of the learned Family Court on both counts under Section 13 (i-a) and 13 (1-A) of the Hindu Marriage Act, 1955 are proper in the eyes of law and on appreciation of the evidence on record. Therefore, the appeal being devoid of merit may be dismissed.
11. We have considered the submissions of the learned counsel for the parties at length and gone through the materials on record. We have also perused the impugned judgment. The case made out by the parties through their pleadings have been taken note in the opening paragraphs and need no repetition. Both the parties adduced evidence in support of their case during trial. However, two conspicuous grounds are clearly made out on the basis of the pleadings and evidence on record in favour of the husband on which the learned Family Court was persuaded to decree the suit. On the first count despite a decree of restitution of conjugal rights granted in favour of the husband, the appellant failed to restitute the marriage and instead approached the appellate court in F.A. No.1670 of 2005. However, she could not get any interim stay in her favour. At the same time, it appears on the second count that she instituted a criminal case under Section 498A of the IPC against the husband and his family members after institution of the suit for restitution of conjugal rights by the husband. Though the trial court convicted the husband and his family members but the judgment of conviction was set aside in criminal appeal no.4 of 2007 by the appellate court. The same got affirmed in Cr.M.P. No.1822 of 2007 by this Court and also by the Apex Court in Special Leave to Appeal (Criminal) No.3228 of 2009 vide judgment dated 04.03.2011. The proposition in law is now well-settled that making of false accusation against spouse and his/her family members unquestionably amounts to cruelty in marriage which is a ground for divorce under Section 13 1(i-a) of the Hindu Marriage Act, 1955.
612. Therefore, on both counts the findings recorded by the learned Family Court do not suffer from any error in the appreciation of evidence or application of law. At the same time, it is to be noticed herein that the parties have been living separately since 20 years and more by now and because of the internecine litigation including criminal case there are hardly any emotional bonds or love and affection left between them to reignite the conjugal life. Though irretrievable break down of marriage is not a recognized ground for divorce under Section 13 of the Hindu Marriage Act but it is considered to be a weighty circumstance in addition to the other grounds of divorce if substantiated by the spouse seeking divorce. As such, it can be safely recorded that the marriage has also been irretrievably broken down.
13. Taking the entire facts and circumstances in totality and for the reasons recorded herein-above we do not find any grounds made out to interfere in the impugned judgment and decree. The appeal stands dismissed. Decree accordingly.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 27.02.2020 sandeep/R.S.