Jharkhand High Court
Manik Bhowmick vs Smt Sarita Bhowmick Burman on 1 April, 2016
Equivalent citations: AIR 2017 JHARKHAND 77, 2017 (2) AJR 439, (2016) 2 JLJR 646, (2016) 162 ALLINDCAS 778 (JHA), (2016) 2 JCR 606 (JHA)
Author: Virender Singh
Bench: Virender Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 106 of 2015
Manik Bhowmick, son ofLate Sudhanshu Sekhar Bhowmick,
resident ofWard No. 13, near Binod Transport, Chakradharpur,
P.O. & P.S. Chakradharpur, District West Singhbhum
... ... Appellant
Versus
Smt. Sarita Bhowmick (Burman), Daughter ofJitendra Prasad
Burman, wifeManik Bhowmick, at present resident ofat Village
Punasi, Chakradharpur P.O. & P.S. Chakradharpur, District West
Singhbhum ... ... Respondent
For the Appellant : Mr. Sudhir Sahay, Advocate
Mr. Mutul Kumar, Advocate
For the Respondent :
CORAM: HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
st
04/Dated: 01 April, 2016
Aggrieved of judgment and order dated 08.06.2015 in
Matrimonial Suit No. 16 of 2008 whereby, the suit filed by the
appellant for a decree of dissolution of the marriage has been
dismissed with cost, the appellant has filed the instant First
Appeal.
2. The appellant instituted Matrimonial Suit No. 16 of
2008 u/s 13(1)(ia) and 13(1)(ib) of the Hindu Marriage
Act, 1955 seeking divorce on the ground of cruelty and desertion.
The marriage of the appellant with respondent was solemnized on
19.07.1996at villagePunasi. On the basis of the pleadings of the parties, the trial court framed the following issues:
"(i) Whether the present suit is maintainable in its present form?
(ii) Whether the petitioner has been treated with cruelty by the respondent from the very inception of marriage till now?2
(iii) Whether the respondent has deserted the petitioner?
(iv) Whether the petitioner is entitled to the relief/reliefs as prayed for?"
3. During the trial the appellant examined 9 witnesses and produced certain documents. Contesting the matrimonial suit, the respondentwife also examined 3 witnesses. The appellant examined himself as PW6 and the respondentwife examined herself as OPW2.
4. The trial court upon consideration of the evidence led by the parties came to a conclusion that the appellant has failed to prove mental and physical cruelty at the hands of respondentwife and the ground of desertion taken by the appellant was premature.
5. Heard the learned counsel for the appellant and perused the documents on record.
6. The learned counsel for the appellant submits that in view of the written agreement signed between the parties on 09.06.2008 whereunder, the appellant agreed to pay Rs. 1,00,000/ to the respondentwife and the evidence of the neighbours who all in unequivocal terms deposed in the court that the respondentwife abused and assaulted the appellanthusband, the trial court committed serious error in law in dismissing the matrimonial suit. It is contended that the trial court proceeded to examine the evidence of the parties, as if, it was conducting a criminal trial. The basic principle of "preponderance of probability" for deciding the matrimonial suit was forgotten by the trial court and the said suit has been dismissed in a manner which discloses, as if, the appellant was required to produce evidence establishing his case beyond all shadows of doubt.
7. From the materials brought on record, it appears that the appellant alleged that from the very beginning of the marriage 3 the respondentwife started behaving irrationally. On the pressure of the respondent, the appellant separated from his mother and sister however, subsequently, the respondent started raising suspicion against the appellant of his having extramarital affairs with other lady. The respondent also started abusing, assaulting and humiliating the appellant. Complaining assault by the respondent, the appellant was constrained to lodge a complaint, on which proceeding u/s 107 Cr.P.C. was started. The appellant alleged that the father and brother of the respondent are antisocial elements who are involved in several criminal cases and at their instigation she has inflicted physical and mental cruelty upon the appellant.
8. The respondentwife filed written statement denying illtreatment or torture by her to the husband. The respondent was taking training of Homoeopathic Medicines from the appellant and, during the course of training the appellant expressed his deep love to the respondent and proposed marriage with her. The respondent alleged that on 07.06.2008 she was abused and mercilessly beaten by her husband and on 09.06.2008, he got her signature on some papers and thereafter, she was forcibly ousted from the matrimonial home.
9. The appellant, during the crossexamination, admitted that after the marriage in the year 1996 till 2008, his wife lived with him. Other witnesses examined by the appellant have also deposed in the court that the behaviour of the respondentwife was not good with her husband and she used to abuse and assault the appellant. However, the witnesses produced by the appellant failed to give specific instance of abuse or assault by the respondent. The appellant also failed to narrate the manner in which the respondent behaved with his family members. He has also failed to give details of any particular instance of respondent's behaviour. Even the proceeding u/s 107 Cr.P.C. was instituted about 8 years after the marriage. The dispute which arose in the 4 month of June, 2008 led to separation of the respondent from her matrimonial home and obviously thereafter, there could not have been any incident of assault, abuse etc. by the respondent. Noticing the averment in the plaint and the evidence produced on record, the trial court has recorded as under:
"Even petitioner has admitted in clear terms in his pleading that petitioner believes that the respondent wants money and for this she is doing all these nuisance acts against the petitioner. Thus, whatever act of mental cruelty has been alleged against the respondent appears to be outcome of financial dispute between the parties which is an ordinary wear and tear of life and happens in each family. The petitioner has also admitted in his rejoinder dated 07.11.09 against the application of the respondent dated 17.03.2009 for interim maintenance and cost of proceeding that he hardly earns Rs. 5,000/ to Rs. 6,000/ per month. Thus, there appears no mental cruelty of such a nature and extent to reasonable cause any apprehension in the mind of petitioner that it is not safe for him to continue the matrimonial relationship with the respondent."
10. In so far as, physical cruelty upon the appellant allegedly committed by his wife is concerned, no injury report was produced by him nor any witness claimed that he has seen the respondent assaulting her husband. On the issue of physical cruelty, the trial court has noticed that all the witnesses are hearsay witnesses. The trial court has observed thus;
"There is no averment in the petition showing any date, day, time and year of assault given by respondent to the petitioner. The petitioner himself has admitted that he started sleeping alone after bolting the door from inside which is sufficient to cause mental and physical agony to the respondent. Thus, the petitioner has also failed to prove any physical cruelty caused to him by the respondent."
11. On the question of desertion, the stand of the appellant that the respondent left the house in the month of 5 June, 2008 takes out the ground of desertion from the purview of Section 13(1)(ib) of the Hindu Marriage Act, 1955. For seeking divorce on the ground of desertion, it must be for a continuous period of not less than 2 years immediately on presentation of the petition whereas, the appellant instituted the matrimonial suit on 30.06.2008 itself.
12. In view of the evidence led by the appellant in Matrimonial Suit No. 16 of 2008, it can safely be concluded that the appellant failed to produce evidence, which on a preponderance of probability may prove his case. The trial court has rightly dismissed the matrimonial suit seeking a decree of dissolution of marriage on the ground of cruelty and desertion.
13. We find no merit in the instant appeal and resultantly, it is dismissed.
(Virender Singh, C.J.) (Shree Chandrashekhar, J.) Manish