Patna High Court
Rajeshwar Jha vs Mrs. Priyanka Jha on 18 October, 2016
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.32 of 2010
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Rajeshwar Jha S/O Sri Lakshmeshwar Jha R/O Binodanand Jha
Road, Deoghar, Near Hindi Vidyapith Main Gate, Deoghar, P.O. B.
Deoghar, P.S. Deoghar, Town & Distt. Deoghar and presently
residing at Chuhabagan, P.O. Dumka, P.S. Dumka, District
Dumka.
.... .... Appellant
Versus
Mrs. Priyanka Jha D/O Sri Surendra Jha R/O Veer Kunwar Singh
Nagar, Dakhini Jakkanpur, P.S. Gardanibagh, in the town &
District of Patna
.... .... Respondent
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Appearance :
For the Appellant : Mr. Amar Nath Deo, Advocate
Mr. Vijay Bharti, Advocate
For the Respondent : None.
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
And
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 18-10-2016
The present appeal has been preferred
against the judgment and decree dated 13.10.2009,
passed by the Principal Judge, Family Court, Patna, in
Matrimonial Case No. 515/2006, whereby the appellant's
Matrimonial Case, seeking dissolution of
marriage/divorce, has been dismissed.
2. Although before the trial court the respondent
had not appeared. The sole respondent had appeared
and contested at this appellate stage, she had entered
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appearance and appeared before the court for
sometime, but, apparently after orders were passed,
asking the appellant to visit and stay with her,
whereafter the appellant informed the court that the
respondent was unwilling to stay nor allowed petitioner
to stay with her, nor her family members were so
inclined, she has remained unrepresented.
3. We have heard this matter on three dates and
perused the records. Respondent did not appear before
the court and remained unrepresented. We are thus
proceeding ex parte.
4. The appellant was and is a Grade-IV employee
in the Civil Court, earlier at Dumka now at Deoghar,
both in the State of Jharkhand. Appellant's marriage
with Priyanka Jha was solemnized on 23.06.2004 at
Patna, where she and her parents reside. After
marriage, as per customs, he stayed at Patna for three
days. Allegedly, there was no cohabitation permitted by
the respondent. On 26.06.2004, the couple traveled to
Deoghar but wife's brother accompanied them and was
always between the two. On 30.04.2004, there had to
be a reception at Deoghar pursuant to the marriage
aforesaid, but in the morning itself, the respondent fell
seriously ill, and her brother insisted taking her back to
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Patna immediately for treatment. The reception had to
be cancelled. In the meanwhile, the appellant noticed
very strange and unnatural behaviour of his wife having
returned to her parents at Patna. In spite of various
efforts made, she refused to come to Deoghar, nor her
parents allowed her to come to Deoghar to live with the
appellant at the matrimonial house. Ultimately, the
petitioner was forced to file a suit under Section 9 of the
Hindu Marriage Act, for restitution of conjugal rights
being Matrimonial Case No. 109/2004, before the Family
Court at Deoghar. The proceedings were contested. In
those proceedings, appellant's wife and appellant's
father-in-law appeared, and there, it was disclosed that
in fact the respondent, Priyanka Jha had been suffering
from some serious mental ailment from February 2004
and had been in regular treatment up to December 2004
at the Central Institute of Psychiatry, Kanke, Ranchi
(Jharkhand) with regular visits and continuous
medication received from the said Institute. This
surprised the appellant and explained the strange and
unnatural behaviour at that time and soon after the
marriage. The appellant then wanted to convert this
Section 9 application into an application for dissolution
of marriage under Section 12 of the Hindu Marriage Act,
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which the court did not allow, and seeing the situation,
the respondent and her father agreed before the court
that the respondent would go and live with appellant at
Deoghar. In view of this undertaking, the Section 9
application was disposed of. But, the respondent never
came to the matrimonial house. Accordingly, at Dumka,
Matrimonial Application No.134/2005 was filed once
again by the appellant, this time for dissolution of
marriage in terms of Section 12, and alternatively for
dissolution of marriage in terms of Section 13, which
was transferred to Patna at the instance of respondent
by orders of Hon'ble Apex Court and numbered as
Matrimonial Case No. 515/2006. Basically the grounds
urged were that Priyanka Jha was suffering from serious
mental disorder from before the marriage. It was
withdrawal of the medicines at the time of marriage,
which had caused her to become seriously sick and to
return of her matrimonial house cancelling the
reception. This fact came to be known only in Section 9
proceedings. Thus, the marriage was sought to be
declared a void marriage. The other was that being
mentally sick, the appellant could not be expected to
live with her, and, alternatively, her not agreeing to live
with him, amounting to cruelty. In support of the pleas,
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the appellant examined five witnesses, he exhibited the
proceedings of earlier Section 9 matrimonial case
documents filed therein, including copies of medical
prescriptions issued from the Central Institute of
Psychiatry, Kanke, Ranchi (Jharkhand).
5. On behalf of the respondent, four witnesses
including the wife were examined. There was a court
witness, Dr. Pramod Kumar Singh, Head of the
Department of Psychiatrist, Patna Medical College and
Hospital (in short "PMCH"), Patna, who was brought in
to explain the prescription.
6. The first thing we would like to notice is that
the respondent admitted that Priyanka Jha was
medically sick from long before the marriage which fact
was not disclosed to the appellant. Her consent of
marriage was not taken. She was under treatment of
doctors at Central Institute of Psychiatry, Kanke, Ranchi
(Jharkhand), and had been under regular medication.
The court witness, Dr. Pramod Kumar Singh, on seeking
the copies of prescriptions, stated that medicines
prescribed clearly indicated serious mental illness, but
exactly what was the illness that was being treated, the
prescription did not disclose. Let it be noted that these
prescriptions was brought on record by the respondent
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herself. The respondent unfortunately did not bring on
record the full report of medical treatment to show that
whether mental illness was curable or not. Even though
they were questioned, nothing particular was disclosed
by them.
7. The other thing we would like to notice is that
the marriage was not consummated. The appellant has
stated that always one or the other family member of
respondent was present, even at the night, during the
short period that the couple were together in between
23.06.2004and 30.06.2004. Thereafter they have not met. The only exception being when this court, at the appellate stage, directed the appellant to go and live with his wife at her place at Patna to somehow make the marriage workable, but here again, though the appellant went, he was not even allowed to sit by the side of his wife, muchless live with her. This fact having been brought to the notice of the court, the respondent stopped appearing in the court herein at this appellate stage.
8. The trial court has taken a hyper technical view of the matter and dismissed the application. It has stated that there has been non proof of the fact that the respondent was suffering from uncurable mental Patna High Court MA No.32 of 2010 dt.18-10-2016 -7- disorder or mental disorder of such nature which excuses the appellant from staying with her. The respondent had accepted the mental disorder. It was for them to show what was the nature of disorder, how serious or how minor or how transient it was. It was a fact that was exclusively within the knowledge of respondent, and therefore, the onus of proof in terms of Section 106 of the Evidence Act lay upon the respondent and not upon the appellant.
9. Having concealed those facts, adverse inference ought to have been drawn against the respondent. If they had disclosed the true state of affairs it would have destroyed their defence that is why they did not disclose the extent of the mental illness. This is so far as Section 12 plea that the marriage is voidable, is concerned. In our view, the facts, as noticed above, justify the plea under Section 12(1)(b) of the Act. No person can be forced to live with a mentally sick person in marriage, without the knowledge of mental sickness especially known before marriage. It is known to the other side in matrimonial alliance, which is life long relationship, which cannot be taken lightly. A mental illness is an important factor in deciding whether to marry or not. Had these facts been disclosed, the appellant could have Patna High Court MA No.32 of 2010 dt.18-10-2016 -8- refused the matrimonial alliance.
10. It is, therefore, said that it was deliberately concealed. The respondent does not state that, at any point of time, this fact was disclosed to the appellant. Thus, as noted above, it was a fit case for grant of relief in terms of Section 12(1)(b) of the Act.
11. Further, the parties were married in the year 2004, and from 23.06.2004, the respondent never expressed her willingness to go and stay with the appellant. Rather, even at the appellate stage, when efforts were made for conciliation, it failed. The respondent never pleaded that she had any good reason to stay away from the appellant or the appellant had thrown her out or the appellant had been disrespectful or cruel to her. In spite of all these, she chose to stay away from matrimony. This is a clear case of cruelty. If one partner to a matrimonial alliance without any reasonable cause stays away from the company of the other partner or deprives the other partner of her or his company for an unduly long time, it has to be held that this would amount to mental cruelty or a mental torture.
12. The parties having married on 23.06.2004, the marriage has not yet been consummated. They have been living separately for 12 years. Even before the trial Patna High Court MA No.32 of 2010 dt.18-10-2016 -9- court they were living separately. Cruelty, desertion both stand established. Thus, we have no option, but to allow this appeal, setting aside the judgment and decree dated 13.10.2009, passed by the Principal Judge, Family Court, Patna in Matrimonial Case No. 515/2006, and hold that the appellant is entitled to dissolution of marriage, on all the grounds, as noticed above. Let a decree be, accordingly, prepared.
13. Let the Lower Court Records be returned immediately.
(Navaniti Prasad Singh, J.) (Nilu Agrawal, J.) Rajeev/A.F.R. U