Jharkhand High Court
Suman Devi vs Nikesh Kumar on 2 July, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
1
Appeal from Original Decree No. 158 of 2012
(Against the judgment dated 09.08.2012 passed by the learned Court of
Principal Judge, Family Court, Hazaribagh in M.T.S. No. 121 of 2006)
--
Suman Devi .....Appellant
Versus
Nikesh Kumar ......Respondent
---
For the Appellant: Mr. S.P. Roy, Advocate
For the Respondent : Mr. P.C. Tripathy, Sr. Advocate Mr. Pradeep Kumar Choubey, Advocate M/s. Nazia Rashid, Advocate
---
CORAM:HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA
---
By Court: Heard learned counsel for the appellant and learned Senior Counsel for the respondent.
2. Appellant is the wife aggrieved by the judgment and decree dated 09.08.2012 passed in M.T.S. No. 121 of 2006 by the learned Principal Judge, Family Court, Hazaribagh, whereunder the matrimonial suit instituted by the petitioner-husband/respondent herein for dissolution of marriage on grounds of cruelty and desertion as per Section 13(1) (i-a)(i-b) of the Hindu Marriage Act, 1955 was allowed.
Case of the petitioner/husband
3. The parties entered into marriage as per Hindu rites and customs on 08.12.2004 at Barkakana, Ramgarh. The wife on coming to her matrimonial home, refused to celebrate the first night which was stated to be the saddest night in the life of the petitioner. All attempts to persuade her failed. She had an ulterior motive to create tension in the family and ultimately succeeded in it. She always used to castigate the petitioner and was of indisciplined character. She had no values for the moral of the family life. She used to appear naked in front of his elder brother and brother-in-law which put everyone to shame. She did not gave due respect to the elders in the matrimonial house. Petitioner had a good academic career. He had passed B.Sc with Mathematic honours in 1st class and had also appeared before the Union Public Service Commission. Though, he qualified in the written test but could not compete in the interview due to mental agony caused by her. The petitioner and his family members were duped at the 2 time of marriage by making to understand that she is student of intermediate which later on turned to be completely false. She had no academic qualification and could not write a sentence in Hindi. A Xerox copy of the writing of the respondent was enclosed for perusal of the court to prove that. When all these behaviours were complained to her father, she admitted her guilt and promised to reform herself but did not amend her even thereafter. The consent of the petitioner had been fraudulently taken at the time of negotiation for marriage. Whenever the respondent stayed in her matrimonial home, she did not show any love or affection towards him rather used to insult him regularly and openly. She used to appreciate the physical features of other persons while taunting the petitioner on his physical appearance. She used to keep sharp blade with her during night and used to say that whenever the petitioner would touch her body, she would cut her nerve and implicate him in serious case. Being disappointed by her continued behaviour, he lodged a complaint before the Mahila Samiti at Gola which convened a meeting in presence of villagers on 10.11.2005. Members of Mahila Mandal tried to make her understand but she refused to live with him. A videography was also done of the proceedings. Lastly, he gave a written complain before Gola Police Station on 12.11.2005 which was entered in Station Diary as Sanha and a copy of it was handed over to him marked as Ext.-1. On 11.11.2005 approximately after one year of marriage, he came to the matrimonial home along with the respondent and left her at her paternal place. He returned thereafter, since then respondent had been residing at her paternal place. Her continued behaviour of neglect did not permit cohabitation any time during their conjugal life. Therefore, petitioner made a prayer for decree of divorce.
4. Respondent through her written statement denied all the allegations stating that they were created with an intention to seek divorce. She further stated that during her stay in the matrimonial house, she always allowed him cohabitation. Petitioner is a highly educated person but his behaviour and thinking were worse than any illiterate person. She had sexual relationship many times during her stay in the matrimonial house. She still loved her husband without any pre condition and is agreeable to live with him. She castigated the conduct of Mahila Samiti and stated that they are constituted for welfare of the women not to impose punishment. It is the petitioner who does not want to keep her for incurring another marriage. Therefore, his prayer deserves to be rejected.
5. Based on the rival pleadings of the parties the following issues have 3 been framed by the learned trial court.
"(i) Is the suit maintainable in its present form?
(i) Whether the petitioner has got valid cause of action for the suit?
(ii) Whether the petitioner has been treated with cruelty by the respondent?
(iii) Whether the petitioner has been deserted by the respondent since more than ten month prior to filing of the suit.?
(iv) Whether the petitioner is entitled to get a decree of divorce dissolving the marriage with the respondent u/s 13 (1) (i-b) of the Hindu Marriage Act, 1955?
(v) To what relief or reliefs, the petitioner is/are entitled to?"
6. Learned family court proceeded to decide issues nos. 3 and 4 together. Eight witnesses were examined by the petitioner namely PW-1 petitioner himself, Naresh Ram Mahto PW-2, Reena Verma PW-3, Kamli Devi PW-4, Janki Mahto PW-5, Durjan Mahto PW-6, Saroj Devi PW-7 and Kunal Kumar PW-8. Petitioner in his examination supported the case made out in the plaint. He referred to the incidences of her threatening him to cut herself on being touched; her misbehaviour of coming naked before the family members; she was not at all educated; the Panchayati held in presence of Mahila Mandal went in vain and that she was left at her paternal home in December, 2005, since when she is living there. He further deposed that false case U/s 498 A of the Indian Penal Code lodged at Mahila Thana has come to an end as the police has submitted final form after investigation finding no merit. He denied that his wife is physically and mentally sound and thus prayer for divorce is maintainable.
PW-2 also talked about her illiteracy and her misbehaviour. He also spoke about the respondent not allowing the petitioner to cohabit with her as he was not fit in her eyes. P.W.-3 also supported the case of the petitioner in chief and in cross-examination. PW-4 referred to the dispute resolution before Mahila Mandal in her presence and stated that respondent flatly refused to live with the petitioner. She had also stated that petitioner was not to her liking and that she had solemnized marriage due to pressure of her parents. She admitted in cross-examination that respondent was a fair looking girl but was not interested in leading conjugal life. PW-5, PW-7 and PW-8 all deposed in support of the petitioner and reiterated different allegations of misbehaviour spoken of by the petitioner also. In cross-examination PW-8 stated that respondent had never been treated by any doctor and it was not clear whether she is suffering from any mental disease or not. He denied that the wife is physically and mentally fit for leading happy conjugal life.
7. The respondent on her part examined herself as RW-2 and her 4 father as RW-1. Her father RW-1 in his deposition, denied allegations of abnormal behaviour by his daughter. He stated that she had led a happy conjugal life and was mentally and physically fit but after one year of marriage petitioner deserted her, as a result she has been staying with him. Still his daughter was ready to lead conjugal life with the petitioner. Respondent RW-2/appellant herein stated about payment of dowry during marriage. She also stated that her husband did not find her fit and used to say that he would solemnize another marriage. He and his family members used to demand dowry from her. Due to the mental agony there was break up in her getting education but she was presently studying in Bachelor of Arts living at Ranchi hospital (sic.). She has filed a maintenance case bearing M-105 of 2007. She was studying at Ranchi Mahila College and her Roll No. is 105.
The petitioner had exhibited the sanha as Ext.1 lodged before the Gola Police Station alleging the misbehaviour of his wife and requested the same to be entered in Station Diary for further reference. Order sheet of the Maintenance Case no. 171 of 2007 passed by learned Sub Divisional Magistrate, Hazaribag was marked as Ext.2. The said order reflected that proceeding under Section 107 Cr.P.C. initiated between the parties was dropped vide order dated 25th October, 2007. Learned Family Court also took note of the criminal case u/s 498 A of the IPC r/w Section 3/4 of the Dowry Prohibition Act. It took note that final form had been submitted by the police finding the case untrue; marked as Ext.3.
8. Based on these evidences on record, the learned family court arrived at a finding of irretrievable break down of marriage. According to it, parties had been living separately for more than seven years. This petitioner was not at all interested to keep her as wife on the ground of cruelty and ill behaviour, though, the respondent in her written statement indicated her intention to live with him. Learned family court took note of the statement made by the respondent wife at para 17 of her deposition that she had been living at Ranchi hospital. According to the learned court this was not explained by her. Since the marriage had irretrievably broken down and the parties had been living separately for more than seven years, therefore, there was no hope for reunion in future. Having decided these two vital issues against the respondent/wife in favour of the petitioner, it also proceeded to hold that the suit is not maintainable and the petitioner has got valid cause of action. Thus the suit was decreed.
5Learned Family court however enhanced the maintenance amount to Rs. 5000/- considering the increase in the salary of the petitioner and rise in price of essential commodities.
9. Learned counsel for the appellant submits that the evidence on record is not at all sufficient to render a finding of cruelty in marriage or desertion against the respondent wife /appellant herein. Apart from the oral testimonies of the petitioner's witnesses, there are no other incriminating evidence on record to corroborate acts of cruelty. Cruelty should be of such a nature which could create apprehension in the mind of the petitioner that it is harmful to live with the respondent. On the contrary, the petitioner had failed to bring on record that the respondent wife had filed a protest petition in the criminal case after submission of final form by the police which has been treated as Complaint Case no. 1613 of 2007. He has on instructions stated today that the learned trial court at Ramgarh has convicted the husband on the charges of cruelty in marriage u/s 498A of the IPC and sentenced him for imprisonment of one and half year. The conviction and sentence has been announced only in the last week i.e. 29th June, 2018. As such it was the appellant wife who suffered cruelty at the hands of the petitioner husband. The husband should not have been allowed to take advantage of his own wrong. It is further submitted that the learned family court had misread the deposition of the wife RW-2 and treated her to have been living at Ranchi hospital though it was an error of pen. She had stated that she was studying in Bachelor of Arts and was enrolled at Ranchi Mahila College, her Roll no. being 105. There could not be any inference of mental illness to be drawn from these statements. Learned counsel further submits that the family court committed serious error of law in decreeing the suit on the grounds of irretrievable break down of marriage though this ground is not a recognized ground under any of the provisions of the Hindu Marriage Act, 1955, especially Section 13. The findings of the learned family court thus could not be justified taking the entire oral and documentary evidence on record. He further submits that as per the issue no.4, respondent had deserted the petitioner for more than ten months prior to the filing of the suit, whereas the ingredients of Section 13 1 (i-b) require desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. As such, the learned family court committed a serious error in coming to a finding of desertion. If at all the respondent wife was living away with the petitioner, it was the petitioner who had 6 admittedly left her at her paternal home to stay. The appellant has always been interested in returning to her conjugal life. Therefore, the impugned judgment can not be sustained in the eye of law as well as facts. It deserves to be set-aside.
10. Learned Sr. counsel for respondent husband herein submits that the conduct of the wife consistently proved through the testimony of eight plaintiff witnesses conclusively established her acts of cruelty in marriage even within one year of the marriage. The petitioner husband had also complained of these acts before institution of the suit to the Mahila Mandal and to the Gola P.S. by lodging a sanha which has been adduced as Ext.1. There was a background in which the petitioner had been compelled to seek divorce due to sustained unnatural acts of the wife and her misbehavior. Marriage had never been consummated. As such, the petitioner was also entitled to invoke the provisions of Section 12 (1) (a) which prescribes that a marriage would be voidable and a decree of nullity could be pronounced if the marriage had not been consummated owing to the impotence of the respondent. Learned counsel further submits that the material evidence relating to the complaint case no. 1613 of 2007, was not brought by the wife during the evidence before the family court. This is a later development which is now being relied upon by learned counsel for the appellant herein. However, he submits that the deposition of the wife also does not prove any acts of cruelty against the husband. Taking a broader view of the matter, the judgment of the learned family court should not be interfered with as only one year after the marriage in 2004, parties have been living separately since December, 2005. There is no chance of their reunion. Marriage has irretrievably broken down. There are no emotional bonds left between the spouses, moreover the respondent husband has entered into second marriage on 01.2.2013 after expiry of the period of limitation of filing appeal against the impugned judgment. This statement has been brought on record by way of a supplementary affidavit during pendency of this appeal. The second marriage has been incurred before the Registrar of Marriages and a child has also been born out of the wedlock. In such circumstances, no purpose would be served by reviving the marriage between the parties. The impugned judgment therefore, should not be interfered with.
11. We have considered the submissions of learned counsel for the parties, gone through the relevant materials on record and also perused the impugned judgment. From the narrative described above as made out 7 from the pleadings of the parties and the evidence on record, the following facts emerged;
(i) Marriage was solemnized on 8.12.2004 between the parties and they are living separately since November, 2005 as per the case of the petitioner husband also.
(ii) The suit was presented in September, 2006. As such the mandatory requirement of two years u/s 13 1 (i-b) of the Act of 1955 to constitute desertion was not made out.
(iii) Desertion, if any, assumingly was only for a period of ten months.
The ingredient of desertion, therefore, were not fulfilled. We find from the records that the appellant wife had all along been showing her intention to live together. As per the admission of the petitioner-husband himself, it was he who had left the wife at her paternal home on 11.11.2005. The learned family court was however persuaded by the final form submitted by the investigating agency in the criminal case filed u/s 498 A of the IPC lodged by the wife. However, as it transpires from the statement of the learned counsel for the parties that the husband was facing a complaint case no. 1613 of 2007 for the charges u/s 498 A of the Indian Penal Code on the protest petition filed by the wife. That trial has culminated very recently and the husband has been convicted thereunder and sentenced to undergo imprisonment as well. If that be so the respondent husband had given a reasonable cause for the wife to stay away from the matrimonial home despite her willingness to resume conjugal life. Therefore, the ingredients of desertion specifically animus deserendi in any case, were not made out. Even ignoring the conviction of the husband under charges of cruelty in marriage, the oral testimony adduced by him through eight witnesses do not establish such an offence of cruelty as conceived u/s 13 1(i-a) of the Hindu Marriage Act, 1955. Cruelty in marriage is not normal wear and tear of life. It has to be of such a serious nature that the aggrieved spouse has reasonable apprehension of harm to his life in living together with the other spouse. Allegations relating to her misbehavior after coming to her matrimonial home, do not get substantiated by any cogent corroborative evidence on record. In these circumstances, the learned family court fell in error in decreeing the suit on the grounds of irretrievable break down of marriage. Irretrievable break down of marriage as such is not a ground recognized under the Hindu Marriage Act for divorce though it is considered as a weighty ground along with other recognized grounds such as adultery, cruelty, desertion etc. 8 provided u/s 13 of the Act. Considered in totality, we are of the opinion that the findings of the learned family court are not based upon proper appreciation of evidence and rather suffer from misreading of the settled principles of law.
12. We find from the records that the judgment of the learned family court was rendered on 9th August, 2012 and the appeal was filed on 7th September, 2012 much within the period of limitation prescribed under the Act. As such, the respondent/husband cannot justify his second marriage on 1st February, 2013, on the ground that he had no notice of filing of appeal. It is appropriate to quote the provisions of Section 15 of the Act on this issue:
"15 Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again:"
13. It follows therefrom that after the marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, then only it shall be lawful for the either party to the marriage to marry again. Neither of the conditions were available to the respondent/husband to incur second marriage in the undisputed state of fact that the present appeal was filed well within time and was pending for consideration before this Court. As such we are not able to uphold the impugned judgment recorded by the learned family court. It is accordingly set aside
14. Present appeal stands allowed. Decree accordingly.
(Aparesh Kumar Singh,J) (Ratnaker Bhengra,J) Jharkhand High Court, Ranchi Dated 2nd July, 2018 Sharda/KNR/ NAFR