Patna High Court
Pankaj Kumar Bazaz vs Madhu Kumari on 19 September, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.298 of 2016
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Pankaj Kumar Bazaz son of Raj Kumar Bazaz, resident of village- Hasanpur
Road Bazar, P.O.- Hasanpur Road, P.S. Rosera Ghat, District- Samastipur.
... ... Appellant/s
Versus
Madhu Kumari daughter of Sri Prabhu Dayal Kajriwal, resident of Mahesh
Kirana Store, Jamalpur, P.S.- Gogari, District- Khagaria
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ganpati Trivedi, Sr. Adv. with
Mr. Vijay Anand,
Mr. Diwakar Upadhyay,
Mr. Madan Mohan,
Mr. Ritik Sah &
Mr. Saurav Suman, Advocates
For the Respondent/s : Mr. Asdul Mannan Khan,
Mr. Hafiz Shahbaz Arif,
Mr. Kumar Ankit &
Mr. Md. Najmul Hodda, Advocates
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)
Date : 19-09-2024
The present appeal has been directed against the
judgment and decree dated 29.09.2015 and 27.10.2015
respectively passed by Principal Judge, Family Court,
Samastipur in Divorce Case No. 12 of 2008, whereby and
whereunder the matrimonial case filed by the appellant for
dissolution of marriage with the respondent has been dismissed.
2. It is worth to mention that initially Matrimonial
Case No. 12 of 2008 was disposed of vide order dated
29.09.2010by the concerned Court and suit was decreed ex Patna High Court MA No.298 of 2016 dt. 19-09-2024 2/22 parte against respondent. Against said decree, Misc. Appeal No. 276 of 2011 was filed by the respondent before this Court and this Court by order dated 24.06.2015, with consent of both the parties, set aside the impugned order dissolving the marriage of the appellant with the respondent with certain direction regarding examination and cross-examination of witness and directed that process be concluded within four weeks from 31st July, 2015.
3. Briefly stated, the fact of the appellant's case is that marriage between the appellant and respondent has been solemnized on 20.05.2004 at the appellant's house at Hasanpur Road Bazar, P.O.- Hasanpur, P.S.- Rosera Ghat, District- Samastipur (Bihar). It is asserted by the appellant that both parties began to lead happy conjugal life and appellant brought his wife to his house and tried to fulfill all the needs of his wife. Appellant never harassed her mentally or physically. On the other hand, the respondent being a modern lady did not like and appreciate the conduct of the appellant and his family members and due to non-compatibility between the appellant and respondent, some differences arose and respondent kept herself aside from the matrimonial home without prior information to the family members and returned back to matrimonial home Patna High Court MA No.298 of 2016 dt. 19-09-2024 3/22 after taking much effort. Appellant thought that behaviour and conduct of respondent would change with the span of time but no change has been witnesses in her behaviour. It is asserted by the appellant that earlier acquainted persons of respondent came to the house of the appellant and it is found that said persons were found in indecent talking with respondent in objectionable condition. Suggestion was made that respondent should not behave in a manner which is not suited but respondent did not pay attention on said suggestion and she has threatened that she would commit suicide or she would falsely implicate the appellant and his family members in false case and their whole life would be suffered if respondent is asked not to talk with earlier acquainted people.
4. The allegation is made that she suffered from mental illness since beginning as said allegation was added by virtue of amendment dated 04.08.2015 as she was suffering from mental depression.
5. The allegation made against respondent that she continued to absent from the matrimonial home without prior permission of the appellant and his family members and after genuine efforts and much persuasion she returned back. One child took birth on 17.01.2005 after passing of only 7 months Patna High Court MA No.298 of 2016 dt. 19-09-2024 4/22 and 27 days from the date of marriage and allegation is levelled against the respondent that she has conceived the child from her boy friend prior to the marriage. Respondent stated that she would not commit such mistake in future. It is asserted that after 15 days of the birth of the child, respondent started making inhuman behaviour and started abusing the appellant and his family members. Respondent stated that appellant would have to reside at the house of respondent's father as Ghar-Jamai. In other words, the respondent set a precondition to which the appellant did not agree. It is alleged that respondent began to dance after getting herself undressed in the mid-night and she closed the doors of appellant's room and inflicted herself on the parts of body and threatened to implicate in the case of dowry. It is alleged that on 20.04.2005 respondent threw iron hammer which struck at the bed of the appellant as a result of which he awoke and he found that there was no cloth on the body of the respondent and she screamed and chased the appellant for assaulting. The appellant by virtue of great effort, snatched the hammer from the hands of the respondent and saved his life. After this incident, appellant became frightened and went alone and laid on a charpai, separating himself from the room of respondent, thereafter, respondent went away without Patna High Court MA No.298 of 2016 dt. 19-09-2024 5/22 permission of appellant and his family members after taking away silver jewelry which was given at the time of marriage and after marriage. Appellant has tried his best to bring his wife back but respondent is very much adamant not to come to the matrimonial home. She has threatened that she would not live at matrimonial home rather appellant has to reside at her father's house otherwise she would kill appellant and his family members by administering poison or she would herself commit suicide. It is asserted that on 07.01.2007 she finally decided not to join the matrimonial home despite efforts taken by the appellant to bring her back to matrimonial home. Appellant has reiterated that since 20.04.2005, no cohabitation has taken place for establishing marital relation between both the parties.
6. By virtue of amendment dated 04.08.2015, it was added that respondent was not residing with the appellant since 21.04.2005 and more than two years had already spent. After obtaining ex parte judgment and decree, on 09.12.2010 appellant solemnized marriage with Sunita Devi and out of the said wedlock one son took birth and there is no case pending between both parties.
7. By virtue of amendment dated 20.05.2010, it has been asserted that prior to the present divorce petition, appellant Patna High Court MA No.298 of 2016 dt. 19-09-2024 6/22 had filed Divorce Case No. 07 of 2007. Respondent had appeared in that case but due to non-appearance of the appellant on a particular date, the case was dismissed. Thereafter, appellant filed Misc. Case No. 22 of 2007 for restoration of the said case and the same was also dismissed by the court with direction that appellant may file fresh divorce petition.
8. The respondent had admitted the factum of marriage on 20.05.2004 and has denied all the allegations made against her. She has asserted that on account of happy conjugal life one son took birth who is 10 years old and is student of class 5 in DAV Public School. She has specifically denied any allegation of abuse and harassment made by her, rather the appellant demanded a vehicle for joining the matrimonial home. The allegation of being found in objectionable condition is totally denied and she has claimed that if any doubt has been arisen for the birth of the son, she is ready for D.N.A. test otherwise he would take the said allegation back and also seek apology before the Court. She has not filed any case for demand of dowry rather she has filed a case for maintenance of herself and the child and just because of illness she failed to turn up before the Court and lastly the said case was dismissed. It has been stated by the respondent that Divorce Case No. 7 of 2007 Patna High Court MA No.298 of 2016 dt. 19-09-2024 7/22 was also filed by the appellant and the same was dismissed and restoration of said case was also dismissed and said matter has been concealed by the appellant. Appellant has established relation with newly wedded wife and she along with son found in the state of pendulum. She has stated that she is not ready for any divorce rather she intends to live with her husband till last breath. She has also claimed for litigation cost of Rs. 1500/- as she has got Rs. 500/- per day by the concerned Court on the dates fixed by the Court.
9. Learned counsel for the appellant submits that judgment and decree passed by the concerned Court is bad in law as well as on facts. The concerned Court has not appreciated the facts and materials available on record while deciding the present divorce case. The concerned Court failed to consider that appellant brought the divorce case on the ground of cruelty, adultery and desertion. The appellant was examined as P.W. 1 and during his evidence he corroborated the facts narrated in the original application for divorce. The said fact was never denied by the respondent even, though, the concerned Court denied to grant decree of divorce. The concerned Court failed to consider that factum of desertion has been proved which is one of the necessary condition of separation of spouse. Learned Court Patna High Court MA No.298 of 2016 dt. 19-09-2024 8/22 failed to consider that the respondent willfully neglects the appellant without reasonable cause and left the matrimonial home without permission or consent against the wish of the appellant. Learned counsel for the appellant in point no. (viii) of the grounds of appeal has mentioned that the trial court has failed to consider the material facts while rejecting the divorce application that after granting of decree of divorce, appellant has married with another lady Sunita and one child was also born from second marriage, when no appeal filed by respondent against the judgment and decree dated 29.10.2010. In the light of aforesaid facts and circumstances, the order passed by the Prinicpal Judge, Family Court, Samastipur is not justified and legal, and hence, the same deserves to be set aside.
10. Learned counsel for the respondent submits that the statement of appellant as mentioned in divorce petition is totally vague and there is no any specific date, time and place with regard to the occurrence. The statement is merely a bald statement which has nothing to do with the substance of the matrimonial dispute. Appellant himself is a wrong doer as he has not taken any effort to bring his wife back to the matrimonial home though the respondent-wife is ready to reside with the appellant-husband. The appellant has filed divorce Patna High Court MA No.298 of 2016 dt. 19-09-2024 9/22 petition with sole reason to harass the respondent as respondent is always ready to live with the appellant-husband. The appellant has asserted very vague statement in the divorce petition in order to make a suitable case for divorce. Except the date of 20.04.2005, there is no any specific date, time and place mentioned which led to the allegation of cruelty, adultery and desertion. The allegation of 20.04.2005 when appellant was sleeping, the respondent-wife gave hammer blow upon the head of the appellant but the same struck on bed side and she has made several false and frivolous allegation without having any material information regarding date, time and place and jumped to the conclusion that finally she is not ready to join the matrimonial home rather she is having a child of 10 years old and taking education in D.A.V. Public School in class V. The allegation of threatening regarding filing false and frivolous case of dowry, wherein no dowry case has been filed by the respondent-wife. The allegation of illegitimate child conceived by some other person is meaningless since as per section 112 of the Evidence Act any person born during continuation of valid marriage between his mother and any man or within 280 days after its dissolution of the mother remaining unmarried shall be conclusive proof that he/she is legitimate child of that man Patna High Court MA No.298 of 2016 dt. 19-09-2024 10/22 unless it can be shown that parties to the marriage had no access to each other at any time when he/she could have been begotten. In this case appellant himself admitted that after 20.04.2005 he had no physical relation with the wife meaning thereby he has prior to that accepted the he had physical relation. He has not denied that prior to 20.04.2005 he had no any relation with the respondent. In this way, the legitimacy of the child with the appellant is proved. It has been asserted that the child has taken birth out of the wedlock and there is no denial of the same. The unsubstantiated allegation of throwing hammer and abusive statement against the appellant and his family members, as there is no specific abusive word given in divorce petition, so it is merely a vague statement. He has only taken a defensive allegation that respondent has threatened to live at her father's house, but it has not been specified upon which date the respondent threatened for residing at her father's house. Rather, it is a false and frivolous allegation as respondent herself is ready to reside with the appellant. Further, the grounds of desertion are totally without any basis as the appellant himself is making allegation of unchastity against his wife without any proof. The allegation of illicit relation with other person without adding any person as party to the proceeding is totally baseless Patna High Court MA No.298 of 2016 dt. 19-09-2024 11/22 and vague. The appellant himself has created a situation for respondent-wife not to live with him. He himself hurriedly married with some other lady without taking into consideration that the case of divorce has not been finally disposed of. In the impugned judgment in paragraph 42, it has been discussed that second marriage of appellant with one Sunita Devi has taken place and one son has been born on 02.10.2011. The appellant himself has taken a decision to keep another wife, even, though the divorce has not taken place with the first wife. In this way, appellant has not been able to prove the issue regarding cruelty, adultery or desertion and the concerned court has passed judgment on the basis of materials available on record. In the light of aforesaid facts and circumstances, the impugned judgment and decree passed by the learned Principal Judge, Family Court, Samastipur is justified and legal and needs no interference.
11. From the side of appellant, nine witnesses were examined. P.W. 1 the appellant himself, P.W. 2 Lalita Devi, the sister-in-law of the appellant, P.W. 3 Chedi Kumar Drowliya, the neighbour, P.W. 4 Sanjay Kumar Bazaz, brother of the appellant, P.W. 5 Navin Kumr Kedia maternal brother of the applellant, P.W. 6 Raj Kumar Bazaz, father of the appellant, Patna High Court MA No.298 of 2016 dt. 19-09-2024 12/22 P.W. 7 Gauri Shankar Kanaudia, maternal uncle of the appellant, P.W. 8 Niraj Kumar Badbadiya, the neighbour and P.W. 9. Rajiv Kumar Droliya, the neighbour.
12. From the side of respondent, four witnesses have been examined. D.W. 1 Madhu Bazaz, the respondent herself, D.W.2 Prabhu Dayal Kejriwal, father of respondent, D.W. 3 Kailash Kumar Kejriwal and D.W. 4 Sanjay Kumar Kejriwal, both uncle of respondent.
13. In the light of given facts and circumstances of the case, the question arises :-
Whether the appellant has proved the case on the ground of cruelty, adultery as well as desertion in the light of given evidence and the materials avaialbe on record or not ?
14. It is necessary to analyze the evidence adduced by P.W. 1, who is the appellant himself. In his evidence, appellant has reiterated the version of divorce petition. He has stated that after 20.04.2005 there was no physical or marital relation with the respondent. In cross-examination, he accepted that he has a son with the respondent aged about 10 years and the son was born on 17.01.2005 at his house. The statement of other witnesses i.e. P.W. Nos. 2, 3, 4, 5, 6, 7, 8 and 9 are just the parrot version of the evidence of P.W. 1.
Patna High Court MA No.298 of 2016 dt. 19-09-2024 13/22
15. On the other hand, DW 1, the respondent, in her evidence has supported version of her case that she is ready to live with her husband and out of the wedlock birth of one son took place. She has further stated that appellant had married another lady and in order to justify the factum of second marriage he has taken shelter of filing the divorce petition. She has specifically stated in paragraph 8 that appellant has taken shelter of filing divorce petition in the year 2007 in order to escape from the responsibility as a husband permanently. The said divorce petition was dismissed and restoration was also dismissed, but the appellant has not stated the said fact in the divorce petition. Appellant has very cleverly made unnecessary facts which was objectionable and disgraceful causing mental agony to the respondent and she suffered physically, mentally and economically. She has denied all the imaginary allegation and is ready for D.N.A. test in order to avoid any stigma on her character.
16. In light of ground of cruelty, it is necessary to get the interpretation of Hon'ble Supreme Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane reported in AIR 1975 SC 1534. The word "Cruelty" has been interpreted that what act constitutes cruelty, which is a ground of dissolution of marriage Patna High Court MA No.298 of 2016 dt. 19-09-2024 14/22 may be defined as willful and unjustified conduct of such a character as to cause danger to life, limb or health badly or mental or as to give rise to reasonable apprehension such a danger. Under statutory provision of Hindu Marriage Act under Section 10(1)(b) of the Act what constitute cruelty must depend upon the term of this statue, which provides:
"10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party--
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;"
17. In the case of V. Bhagat vs D. Bhagat reported in 1994 AIR 710 the concept of cruelty has been examined through referring the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105. The word "Cruelty" has not been defined in the Hindu Marriage Act, it has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such Patna High Court MA No.298 of 2016 dt. 19-09-2024 15/22 treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
18. The crux of the various decisions of the Hon'ble Supreme Court on the interpretation of the word "cruelty" is that it has to be construed and interpreted considering the type of life the parties are accustomed to; or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits.
19. In the present case, the appellant has raised allegations but the same are quite vague as there is no specific allegation so as to constitute cruelty. Though the appellant has levelled allegation that respondent was found in objectionable condition with earlier acquainted person, but there is no material information to substantiate the allegation of adultery as the person against whom allegation is made has not been arrayed as party in the divorce proceeding and the allegation of adultery is merely a vague and unsubstantiated statement. The appellant has not given any specific statement regarding the date of Patna High Court MA No.298 of 2016 dt. 19-09-2024 16/22 threatening and he has not specifically stated with whom respondent was having objectionable chatting. The appellant has levelled allegation of hammering, but no substantial evidence has been given in support of such allegation. Not a single specific allegation of behavioral misconduct amounting to cruelty has been made either in pleading or evidence with reference to date, place and nature of the cruelty The self asserted and bald statement of appellant is quite contradictory in the sense that one cannot have cold and hot breath at one and the same time. The appellant has merely made statement that the has taken efforts to bring his wife back, but no material information has been given as to what efforts has been taken by the appellant to bring his wife back. From perusal of the evidence adduced, it is evident that the appellant never made any effort to secure the custody of the son, but there is no specific denial that prior to 20.04.2005 there was no co- habitation between husband and wife and out of the wedlock birth of one son has taken place. The appellant has not taken any legal steps for restitution of conjugal rights. The allegation regarding abusing and the conduct of wife has not been specified with regard to date and time. The allegation of specific abusive word has not been mentioned in the divorce petition. Patna High Court MA No.298 of 2016 dt. 19-09-2024 17/22 Allegations are merely bald statements and it is settled law that no one can go beyond pleadings. In this way, the allegations levelled are quite vague as no solitary circumstance has been stated with regard to date, time and place of occurrence which amounts to cruelty.
20. In the present case, we are assessing the fact of the present case upon the touch stone of ground of cruelty. We do not find any solitary circumstance, where it is found that the appellant has proved the case where cruelty is constituted in light of statutory provision as mentioned above. In daily life numerous incidents have taken place but all cannot be taken into account, which is reasonably wear and tear of married life, which can be ignored.
21. When we are referring the ground of desertion, we find that there are two kinds of desertion:-
(i) actual desertion and (ii) constructive desertion.
In the case of desertion, it is settled by the Hon'ble Supreme Court through judicial pronouncement and it has been interpreted that (what could be said to be "Desertion" in the divorce proceedings filed under Section 13 of the Hindu Marriage Act, 1955). The expression "Desertion" has come up under the judicial scrutiny of Hon'ble Supreme Court in Patna High Court MA No.298 of 2016 dt. 19-09-2024 18/22 BipinChandra JaiSinghBai Shah vs. Prabhavati (AIR 1957 SC 176) which was considered in the case of Lachman UtamChand Kirpalani vs. Meena alias Mota (AIR 1964 SC
40). In BipinChandra JaiSinghBai Shah (supra) it has been held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. The Hon'ble Supreme Court collating the observations made in the earlier decisions, stated its view as under:-
"Collating the aforesaid observations, the view of this Court may be stated thus: Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home."
22. From the materials available on record, it has been transpired that appellant has already filed earlier divorce petition in 2007 and same has been dismissed and restoration petition was also dismissed. After dismissal of restoration petition, again he filed present divorce petition in 2008 where aforesaid fact of earlier filing divorce petition in 2007 has not been pointed out, but later on by virtue of amendment dated 20.05.2010 it was Patna High Court MA No.298 of 2016 dt. 19-09-2024 19/22 added. If appellant, who himself has filed divorce petition, must be aware of the fact that prior to filing of divorce petition in 2008 he had already filed a divorce petition in 2007, but this fact was not mentioned in the divorce petition for the reasons best known to the appellant. Even information regarding divorce petition filed in 2007 has been added by way of amendment but petition which was filed in 2007 was neither produced nor exhibited with regard to ground for which the petition has been filed. In that situation, the very ground of the appellant that he has taken very positive approach to bring his wife back is neither tenable nor sustainable. The appellant himself has not proved that respondent left the matrimonial home on a particular date without there being any fault on his part and on the other hand respondent herself has stated that she is ready to live with the appellant-husband, in that circumstances, appellant has not proved the ground of desertion against the wife as from perusal of materials available on record, there is nothing on the record which goes to show that appellant has taken best efforts and respondent is not ready to live with her husband, rather respondent has clarified that she is ready to live with the appellant. From perusal of the materials available on record, it is found that appellant himself has married with another lady Patna High Court MA No.298 of 2016 dt. 19-09-2024 20/22 during the existence of first marriage and he has shrewdly taken the defence of ex parte judgment and decree passed in the Divorce Case No. 7 of 2007. On the basis of record, it is found that with consent of both the parties, ex parte order has been set aside by this Court by order dated 24.06.2015, but no whispering has been made on behalf of the appellant's side to the extent that appellant has already married in 2010 after passing of the ex parte decree. But, by virtue of amendment dated 04.08.2015, purposely it has been added that after passing of the ex parte decree he has solemnized marriage with another lady. Had he married on the said date, as asserted in the plaint, he would have stated this fact, when with consent of both the parties the ex parte decree has been set aside. From perusal of materials available on record, it is crystal clear that several allegations made in the plaint are without having any basis as unsubstantiated allegation of adultery has been made against the wife and person against whom adultery is made has not been made party. The question of bring back his wife does not arise at all when appellant is in habit of filing divorce petition at regular intervals when the cause of action arose in 2007. The grounds mentioned in divorce petition of 2007 has not been revealed for the reasons best known to the appellant. In this way, the Patna High Court MA No.298 of 2016 dt. 19-09-2024 21/22 allegation regarding desertion that the respondent is liable for not joining the matrimonial home is without having any basis as wife is ready to join the matrimonial home.
23. The appellant very shrewdly and cleverly wraps up his own wrong doing in order to justify his second marriage incorporating purposely by way of amendment that appellant performed second marriage when divorce was granted ex parte. But in 2015 the said fact was not raised when this Court set aside the ex parte decree with consent of both the parties. With regard to the allegation of mental illness which has been added by way of amendment, though appellant was having the knowledge of respondent's mental illness but what prevented him from mentioning the in the divorce petition that respondent was suffering from mental illness and she was having mental depression. As a matter of fact, when respondent made allegation that she suffered mentally, physically and economically at the hands of the appellant, then purposely amendment was made to incorporate regarding respondent's mental illness as a weapon for seeking divorce. This allegation is nothing but an after thought device to conceal his own wrong doings. On perusal of the findings recorded by the concerned Court, it is found that the findings have been arrived on basis of Patna High Court MA No.298 of 2016 dt. 19-09-2024 22/22 the materials available on record.
24. On all counts keeping in view the discussions made in foregoing paragraphs, we find that there is no merit in the present appeal warranting any interference in the impugned judgment. The Family Court has rightly dismissed the matrimonial case of the appellant seeking divorce. The present appeal is dismissed accordingly, affirming the impugned judgment and order of decree.
(P. B. Bajanthri, J) ( Alok Kumar Pandey, J) mcv/-
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