Jharkhand High Court
Brajesh Sahu vs Pratibha Sahu on 7 August, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 169 of 2015
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Brajesh Sahu ..........Appellant
vs.-
Pratibha Sahu .......Respondent
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Atanu Banerjee, Adv.
For the Respondent : Mr. Rajesh Kumar, Adv.
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By Court Heard learned counsel for the parties.
2. Appellant is the husband aggrieved by dismissal of his Matrimonial Title Suit No. 18 of 2010 by judgment dated 25th August, 2015/decree dated 8th September, 2015 passed by learned Principal Judge, Family Judge, Lohardaga (Additional Charge) seeking decree of dissolution of marriage on the grounds of cruelty, desertion and adultery by the respondent in terms of Section 13(1)(i-a)(i-b) of the Hindu Marriage Act.
3. As per the case of the petitioner-husband, marriage between the parties was solemnized on 29th May, 2001. A daughter was borne out of wedlock. He was subjected to cruelty by the respondent time and again. He further alleged illicit adulterous relationship with her brother-in-law and that she had deserted him without his consent. As such, he pleaded that the marriage had irretrievably broken down and could not be revived. The plaint was filed by the complainant himself making allegations in a composite manner. He also alleged that respondent regularly indulged in quarrel and abuses. She had complained to the Mahila Mandal which found the allegations as unfounded. She used to inflict untold cruelty on him by mixing small pieces of nails, broken pieces of bangles, glasses in the food which if taken could have proved very fatal. She also had alleged assault by him in order to entail miscarriage of her pregnancy. He further asserted that for most of the time he remained out of the house her whereabouts and mixing with different persons was difficult to ascertain. He always provided for necessary amenities of life. He had to eat in 2. Hotels. Several such allegations were made by him to support the grounds of cruelty.
4. Respondent, in her written statement, denied the allegations. She stated that a criminal case bearing G. R.No. 8 of 2010 was filed by her but that was withdrawn before this Court. She alleged cruelty on the part of the petitioner, who had developed bad habits of drinking. He always used to have physical relationship with her, but allegations of adultery were based on mere suspicion.
5. Learned Family Court posed the issue for determination i.e., whether the suit for dissolution of marriage was fit to be decreed.
6. Plaintiff and respondent both examined themselves as P.W. 1 and D.W. 1. No other witnesses were examined on their behalf. P.W. 1 alleged that she was found in compromising position with her brother-in-law Dinesh Sahu. Previously, he was working in Orissa and on getting opportunities, she used to come to her brother-in-law and establish adulterous relationship with him. He had filed a petition before the Superintendent of Police, Lohardaga regarding that. She used to taunt him after making such adulterous relationship with other persons. In cross- examination, he stated having found his wife in compromising position but did not make any complain to anybody. Daughter was borne on 30th August, 2002. In cross-examination at Para-30, he further admitted having found her in compromising position only once. He further stated at Para- 33 that the dispute with his wife was reported to Superintendent of Police, Lohardaga in 2009. At Para-41, he admitted that he had not seen the respondent making relationship with her brother-in- law.
7. Respondent, in her deposition, denied cruelty and adulterous relationship. Her attention was drawn in para-24 of her cross-examination where she stated that in writing she had admitted of her adulterous relationship with her brother in law, but it was signed under duress and coercion and further being fed up of the suspicion.
8. Petitioner adduced Ext.-1, a letter written by her as referred to in her cross-examination at Para-24, letter being dated 29th July, 2009.
9. Learned Family Court discussed the evidence of the parties in the light of the rival pleadings and dismissed the charge of adultery on the 3. ground that adulterer a necessary party was not impleaded. Further even after the discovery of the adulterous relationship, he has not denied having committed sexual intercourse with his wife off and on. As such, charges of adultery were not proved and if at all true had been condoned. Learned Court also disbelieved the allegations of cruelty as no specific acts to attract the ingredients of cruelty were established through cogent and corroborative evidence. Illustrations of cruelty as cited in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 and in the case of K. Srinivas Rao Vs. D. A. Deepa reported in (2013) 5 SCC 226, were referred to before coming to an opinion that the married life if reviewed as a whole instead of few isolated instance over a period of time would not constitute the grounds of cruelty. Ill-conduct must be persistent for a fairly lengthy period, where the relationship had deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer. Since, there were no such cogent materials on record to establish the grounds of cruelty, the same were disbelieved. Learned Court also held that ingredients of desertion as per Section 13(1) (i-b) were not fulfilled as the parties had entered into a compromise on 8 th May, 2010 just before the Matrimonial Title Suit No. 18 of 2010 was filed. The ingredients of desertion required continuous separation for a period of not less than 2 years immediately preceding the presentation of the suit. Reference was made to the judgment of the Apex Court in the case of Bipinchandra Jaisinghbai Shah Vs. Prabhavati reported in AIR 1957 SC 176. Ingredients of desertion as laid down therein were also discussed to come to a finding that the petitioner had failed to establish the said charge.
10. Assailing the findings of learned Court, learned counsel for the appellant has primarily relied upon the grounds of cruelty for seeking dissolution of marriage. Appellant has brought on record the judgment rendered by learned Additional Judicial Magistrate, Lohardaga dated 19th August, 2016 passed in Complaint Case No. 94 of 2011 (T. R. No. 162 of 2016), whereunder he and his family members have been acquitted of the charges under Section 498(A)/323/34 of the Indian Penal Code lodged by the complainant/respondent herein. Learned counsel for the 4. appellant has relied upon the judgments rendered by Apex Court in the case of K. Srinivas Rao Vs. D. A. Deepa reported in (2013) 5 SCC 226, and in the case of K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34. Reliance is also placed upon a judgment rendered by this Court in the case of Sujoy Ghosh Dastidar Vs. Dayita Ghosh Dastidar reported in 2018 (1) JBCJ 449 H.C. He submits that subsequent events like the judgment of the court can be taken into consideration and are admissible even at the appellate stage as also held by the Apex Court in the case of Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288. He submits that prosecution of the appellant and his family members on defamatory and unfounded allegations for a period of 5 years continuously would be sufficient to constitute mental cruelty. The appellant and his family members have been made to undergo tremendous sense of persecution and at the same time loss of reputation on account of these false accusations. The grounds of cruelty therefore stands substantiated in the light of the judgment rendered by the Apex Court in the case of K. Srinivas (Supra). On the basis of these submissions, learned counsel for the appellant has prayed for dissolution of marriage by setting aside the impugned judgment.
11. Learned counsel for the respondent has defended the findings rendered by learned Family Court. He submits that the suit was misconceived. It was not filed as per the requirement of law taking plea of all the grounds which are now being agitated by the learned counsel for the appellant. Learned Family Court however dealt with each of the grounds raised i.e. adultery, cruelty and desertion and came to a considered finding that the petitioner-husband had failed to produce cogent evidence to substantiate any one of them. The ingredients of desertion were not made out as the suit was presented immediately after the compromise without waiting for the mandatory period of separation of two years in terms of Section 13(1)(i-b). Since the adulterer was not impleaded, the allegations of adultery could not have been substantiated. Even otherwise, evidence of the petitioner showed having condoned any such alleged acts of adultery by establishing sexual relationship with the respondent both before and after such alleged incidence. A daughter was 5. also borne out of wedlock. The charges of cruelty were equally not substantiated as except making bald assertion in the plaint no cogent evidence was produced by the petitioner. On the other hand, it is the respondent, who had suffered in marriage due to cruelty and torture on non-fulfilment of demand of dowry. Learned Family Court therefore, did not consider it proper to allow the petitioner to take advantage of his own wrong.
12. Learned counsel for the respondent however does not dispute that the appellant and his family members have been acquitted of the charges under Sections 498(A)/323 read with Section 34 of the Indian Penal Code by learned Additional Chief Judicial Magistrate, Lohardaga by the judgment dated 19th August, 2016 passed in Complaint Case No. 94 of 2011, of course, during pendency of this appeal. However, he submits that the findings of learned Family Court do not suffer from any such errors of law or misappreciation of evidence which can be annulled in appeal.
13. We have considered the submission of learned counsel for the parties, perused the impugned judgment and also taken note of the relevant material evidence on record relied upon by the parties as also discussed by Family Court. We have also taken note of the judgment of acquittal rendered by learned Additional Chief Judicial Magistrate, Lohardaga in the Complaint Case No. 94 of 2011/T. R. No. 162 of 2016 lodged by the respondent-wife for the charges under Sections 498A/323 read with Section 34 of Indian Penal Code. From the aforesaid facts and discussion, it is true that the appellant had failed to substantiate both the charges of desertion and adultery in marriage for the specific reasons recorded by learned Family Court. We do not find any reason to disturb those findings. Learned Family Court however was also not satisfied on the charge of cruelty alleged by the petitioner for seeking dissolution of marriage. It appeared to have been persuaded by the allegations of cruelty levelled by the respondent-wife against the petitioner, for which complaint case was instituted by her, of course, after filing of the matrimonial suit in 2010. But the subsequent events that too in relation to the offshoot of matrimonial dispute between the parties can always be taken into account at the appellate stage as well as held by the Apex Court in the case of 6. Vishwanath Agrawal (Supra). The judgment of acquittal has been brought on record by the appellant through supplementary affidavit. Perusal thereof, shows that the complainant had alleged that seven accused persons including the petitioner and his family members had inflicted cruelty and torture upon her in various manners. She had alleged that she was provided medicine for miscarriage of her baby in the year 2006. They had indulged in abuses and assault and also driven her out from the matrimonial home. She had further alleged illicit relationship of her husband with another lady, which on being protested were retaliated with assault upon her. She further alleged snatching of gold chain, ear ring etc. by other accused persons, but her husband instigated them to assault her. She had also alleged that her husband had stolen golden silver ornaments including her certificate and other valuable documents and it was on the pressure of the police that she was provided remuneration for her livelihood and household articles were returned. She had produced three witnesses, P.W. 1, the complainant herself, P.W. 2, father of the complainant and P.W. 3 her mother. She had not exhibited any document in support of her case though the defence exhibited a number of documents. After discussion of the evidence on record, learned trial court came to the opinion that the allegations of causing miscarriage on a number of occasions was not established by any cogent corroborative evidence. Certain persons arraigned in the category of accused did not come under the purview of relative of husband to attract the provisions of Section 498A of the Indian Penal Code who were accordingly acquitted. Allegations of assault were also not supported as P. W.-1 was never examined by any doctor or any document of treatment were produced. Relying upon the judgments rendered by the Apex Court, it came to a conclusion that the complainant had miserably failed to prove the charges against the accused persons beyond shadow of doubt. Hence, petitioner, his brother, his sister- in- law and others were acquitted of the charges.
14. This prosecution continued for five years since 2011 till they were acquitted in 2016. Such false accusations which remain unsubstantiated amounts to inflicting sufficient mental cruelty upon the suffering spouse and his family members. In the case of K. Srinivas Rao (Supra), the Apex 7. Court has after referring to the illustrations rendered by it in the case of Samar Ghosh (Supra) observed as under at Para 16:-
"16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
Reliance be also placed in the case of K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34.
14. Viewed thus, we are of the opinion that the conduct of the respondent-wife in making unfounded, indecent, false accusation against the husband and her family members during the subsistence of marriage amounted to mental cruelty of such a nature as a result of which, relationship between the parties had deteriorated beyond redemption. The petitioner would find it extremely difficult to live with the respondent any longer. Mental cruelty is a state of mind, a feeling of deep anguish, disappointment and frustration in one spouse caused by the conduct of other for a long time. Feeling of persecution and loss of reputation in the facts of the instant case which continued for a period of 5 years would suffice to draw such an inference. A comprehensive appraisal of the matrimonial life of the parties and the aforesaid false accusations made by the respondent leaves us with no doubt that the wronged party could not be reasonably asked to put up with such conduct and continue to live with her. Marriage between the parties can no longer be revived in the circumstances noticed above. If relief is not granted in such circumstances, it would amount to keeping a legal tie alive when all emotional ties have dried up and broken between the parties. This would in itself be disservice to the institution of marriage. We are therefore satisfied that the appeal deserves to be allowed on the grounds of cruelty. Marriage between the parties stands dissolved.
15. On being asked, learned counsel for the appellant has, on instruction, informed that the appellant is running a shoe shop at 8. Lohardaga in the name and style of Kanak Lata Shoe Shop. He has meager earnings from it. Respondent is staying with the only daughter borne out of the wedlock, who is now aged 16 years. Learned counsel for the respondent submits that a reasonable amount of permanent alimony should be granted to take care of the present and future needs of the wife as well as the daughter. Taking an overall view of the matter, we deem it proper to grant permanent alimony of Rs. 3 Lakhs in favour of the respondent for their maintenance and also for the future education and marriage of the minor daughter. The amount of Rs. 1 Lakh be paid in two installments at intervals of three months each in favour of the wife. Rest of the amount of Rs. 2 Lakhs be kept in a fixed deposit in the name of the minor daughter for her future education and marriage within a period of 1 year from today. Appellant or the respondent would be entitled to draw the amount kept in fixed deposit with permission of learned Family Court to take care of the future education and/or marriage of minor daughter. Impugned judgment is set aside.
16. Appeal stands allowed in the aforesaid terms. Decree accordingly.
(Aparesh Kumar Singh, J) (Ratnaker Bhengra, J) Jharkhand High Court, Ranchi Dated 7th August, 2018 JK/NAFR