Jharkhand High Court
Raj Kishore Das vs Lalita Kumari @ Shakuntala on 10 September, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
FA No. 47 of 2021
Raj Kishore Das, son of Late Sona Das, Retired Principal of Kendriya
Vidyalaya Sangathan under Ministry of HRD, Government of India,
presently residing at Lakhi Sona Niwas, Surya Kant Roay Choudhary Road,
in front of Deoghar Nagar Nigam Office, PO: B. Deoghar, PS: Deoghar
(Town), District: Deoghar. ... Appellant
-Versus-
Lalita Kumari @ Shakuntala, W/o Raj Kishore Das, daughter of Rameshwar
Mahra, by profession Government Teacher, retired Head Mistress Upgrade
Middle School Chitto Lorhiya, resident of village: Chitto Lorhiya, PO:
Deoshangh, PS: Kunda, District: Deoghar. ...Respondent
CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA
HON'BLE MR. JUSTICE SANJAY PRASAD
For the Appellant : Mr. Sudhansu Kumar Deo, Advocate
For the Respondent : Mr. Lakhan Chandra Roy, Advocate
...
CAV on: 05/03/2024 Pronounced on:10/9/2024 Raj Kishore Das, who is appellant before us, had instituted Matrimonial (Divorce) Case no. 138 of 2016, before the Principal Judge, Family Court, Deoghar, whose marriage was solemnized with Respondent Lalita Kumari @ Shakuntala on 18.06.1973.
2. By judgment dated 20.03.2021, Matrimonial (Divorce) Case no. 138 of 2016,which was filed under section 13(1)(i-a) and (i-b) of Hindu Marriage Act,1955, was dismissed by the Principal Judge, Family Court, Deoghar.
3. The appellant has alleged that he belonged to a cultivator family while the father of the respondent was Deputy Collector at the time of his marriage and he was unemployed at that time. Hence, respondent has superiority complex in her mind due to upper family status and she was always humiliating the appellant as well as his family. The appellant further alleged that respondent behaved with her mother-in-law as if she was a maid servant and often used abusive language against the appellant. Respondent did not do any house hold work and her behavior was not co-operative with his family members. The further allegation of appellant is that respondent left his house on instigation of her father and went to her parental home in the year 1990 and filed a false case against the appellant vide PCR Case No. 1 FA No. 47 of 2021 390 of 1990 under sections 498 A and 420 of IPC, which was dismissed vide order dated 22.12.2010.Appellant has further alleged that respondent is living separately from the appellant since more than 24 years and there was no co-habitation between them during the intervening period. Appellant stated that he had joined the service in Kendriya Vidyalaya Singathan and retired from the post of Principal in the year 2012 and thereafter, appellant has constructed a small house at his parental land in Suray Kant Roy Choudhary Road in front of Deoghar Municipality. Appellant has also stated that respondent also joined in Government Service and she retired as Head Mistress in Upgraded Midddle School Chitto Lorhiya and she constructed her own new house and was residing in her own house. Appellant further alleged that when respondent got information about construction of house by appellant then she entered into the house in absence of the appellant by breaking the lock and with the help of her father took away the house hold articles and also filed a false case against the appellant. Appellant further alleged that respondent had subjected him to cruelty since 1989 and also deserted him.
4. Respondent contested the suit, filling written statement denying the allegations in the memo of suit and said she has two children, a son and daughter from the appellant and both the children are married. Respondent has made counter allegations that her husband has illegally married with one Sujata Devi, hence, she had filed PCR Case No. 390/1990 under sections 494/109/120(B) of IPC . Later on, aforesaid case was compromised and appellant had undertaken that he would maintain good relation with respondent and both children, but, the appellant did not maintain good relation. Respondent has also denied the allegation that she is living separately from the appellant since 24 years.
5. The Principal Judge, Family Court, Deoghar, has framed the issue, whether OP Lalita Devi has deserted the petitioner Raj Kishore since last 24 years without any reasonable cause and whether the OP has subjected the petitioner to cruelty or not.
6. Appellant has examined three witnesses including the appellant himself to prove cruelty and desertion and respondent wife also examined three witnesses including herself to resist the claim of divorce.
7. PW-1 Raj Kishore Das, the appellant, in his affidavit has stated that his marriage was solemnized with the respondent on 18.06.1973 according to Hindu rites and customs,but, after 3-4 years of his marriage, 2 FA No. 47 of 2021 respondent and her family members started misbehaving with him as he was unemployed and respondent also misbehaved with her mother. Thereafter, on instigation of her father, respondent went to her parental home in 1990, saying that there will be no matrimonial relation between them. Then, respondent filed a complaint case being PCR No. 390/1990 against him, in which he was acquitted. After 1990 there was no matrimonial relationship between him and respondent and marriage was socially dissolved. Appellant retired from the post of Principal from Kendriya Vidyalaya Singathan and after his retirement, he constructed house on his parental land and started coaching institute but, respondent and her father broke open the lock and entered into the house and took out house hold articles and hence, he had to file PCR case no. 509/2016 before the Court of CJM, Deoghar. Respondent to save her skin also filed Town P.S. case no. 227/2016 dated 05.05.2016. Appellant further stated that both he and his wife are living separately for the last 26 years and there is no any matrimonial relation with his wife. To the court question, appellant replied that his wife was living separately from him since 1990 and he had no physical and matrimonial relationship with his wife. In his cross-examination, appellant deposed that he worked on the post of teacher in Kendriya Vidyalaya, Sector-5, Dwarka and he refused to have second marriage with Sujata Devi in 1989.
8. The other two witnesses examined by the appellant are PW-2 Uttam Kumar Uttam, who is the nephew of the appellant and PW-3 Shyam Prasad and he is friend of the appellant. Both PW-2 and PW-3 have stated in their affidavit that respondent always abused the appellant and threatened the appellant to implicate in a false case and has intention to grab the house of the appellant. Appellant had filed following documentary evidence-Ext.-1 Original statement made before Notary Public by Kedar Nath Das dated 24.06.2016, Ext.-2 certified copy of FIR of Deoghar Town P.S. case no. 317/2017, Ext.-3 certified copy of order passed in A.B.P. No. 364/2016, Ext.-4 certified copy of order sheets of complaint case No. 390/1990 passed by the C.J.M., Bhagalpur and Ext.-5 which is certified copy of FIR of SC/ST case no. 116/2017.
9. On the other hand, Lalita Kumari (R.W.-2), the respondent in this case, in her affidavit has admitted the factum of her marriage with the appellant and giving birth of two children of the appellant namely son Rahul Raj Tandan, date of birth 01.01.1979 and daughter Rinki Kumari @ Sweta Raj, date of birth 01.01.1982. Respondent further stated that appellant was 3 FA No. 47 of 2021 appointed on the post of teacher in Kendriya Vidyalaya, but, after appointment her husband stopped coming and communicating with her. Then, respondent sent her brother Sunil Kumar (R.W.-1) to Delhi to know about the appellant and when respondent's brother returned from Delhi he informed the respondent that appellant had married another lady namely Sujata Devi and leading matrimonial life with her. When respondent came to know about the second marriage of her husband, she filed case no. 390/1990 before the court of CJM, Bhagalpur under sections 494/420/120B/109 of IPC against her husband, Kedarnath Das, Gopal Das (both brothers of respondent's husband) and sautan Sujata Devi, but, later on matter was compromised and appellant husband gave undertaking to the respondent wife that second wife will have no right in his ancestral property and appellant will come to the respondent in the holidays and appellant will discharge his duty as a husband. Respondent further stated that appellant as father discharged all the rituals of marriage alongwith respondent in the marriage ceremony of son Rahul Raj Tandan, in 2006.
10. The other two witnesses examined by the respondent are R.W.-1 Sunil Kumar, who is the brother of the respondent and R.W.-3 Sanjay Kumar Sindhu, is known to both the parties.
11. R.W.-1 Sunil Kumar has stated that appellant was appointed as teacher in Central School, but, after his appointment, appellant occasionally visited the respondent. Hence, respondent sent him to Delhi to know the whereabouts of the appellant, in May 1990 and on reaching Delhi, he saw that appellant was living with a women named Sujata and leading conjugal life with her.
12. R.W.-3 Sanjay Kumar Sindhu, has stated that son of appellant and respondent namely Rahul Raj Tandan was married in the year 2006 and in the marriage appellant was present and both appellant and respondent performed the marriage rituals as husband and wife.
13. Respondents had filled following documentary evidences-Ext.- A to Ext.-A/2, which is three photographs, showing rituals performed by appellant and respondent in their sons marriage, Ext.-B certified copy of complaint petition no. 390/1990 before the C.J.M., Bhagalpur, Ext.-C certified copy of order sheets of complaint case no. 390/1990, Ext.-D certified copy of withdrawal complaint petition by the complainant, Ext.-E certified copy of compromise petition between accused Gopal Das and Complainant, Ext.-F certified copy of compromise petition between accused 4 FA No. 47 of 2021 Raj Kishore Das, Kedar Das and Complainant, Ext.-G certified copy of order sheet of P.C.R case no. 509/2016, Ext.-H certified copy of FIR of Deoghar Town P.S. case no. 227 of 2016,G.R.638/2016 and Ext.-H/1 certified copy of charge sheet of Deoghar Town P.S. case no. 227 of 2016,G.R.638/2016.
14. Learned counsel for the appellant has submitted that learned court below did not take judicial notice that parties are living separately since 24 years and there is no physical and conjugal relationship between them. Appellant has given sufficient evidence by filling documentary evidence before the learned court below to support the ground of desertion and cruelty as respondent did not join the company of the appellant and respondent is living separately in her house since long time.
15. On the other hand, learned counsel for the respondent submitted that appellant has caused mental cruelty to her as appellant was living with a women named Sujata Devi and was leading conjugal life with her. Hence, respondent had filed complaint petition no. 390/1990 before the C.J.M., Bhagalpur, but, later on case was compromised on undertaking given by the appellant. Respondent never deserted the appellant and in the impugned order also learned court below noted that appellant is employed as teacher in Central School at Delhi and continued till 2012 and respondent is also employed as a teacher at Deoghar in Upgraded Middle School, Chittoloriya, Deoghar, therefore, there is reasonable ground to live separately and there is no intention to refuse the marital status by the respondent.
16. The Principal Judge, Family Court, Deoghar, has held under:
"17. In the case admittedly both the parties are living separately since long but reason be- hind it that petitioner is employed as a teacher in Central School at Delhi and continued till 2012. On the other hand, respondent is also employed as a teacher at Deoghar in Upgraded Middle School, Chittoloriya, Deoghar therefore there is reasonable ground to live separately and there is no any intention to refuse the marital status by the respondent. Therefore animus discrendi is not with the respondent. Now the question arises after retirement of the petitioner he came to Deoghar and constructed the parental house in that course whether the respondent refused to leave the company of petitioner and deserted him willfully, In this regard I gone through the evidence of both the parties which shows that the respondent along with her daughters started lilving with the petitioner but due to quarrel of some cause the case has been instituted against the petitioner for committing theft of valuable belongings to respondent and her daughter-in-law which is pending in the court and also another case been filed by the respondent. Charge-sheet has also been submitted and a counter case has also been filed by the petitioner and thereafter the respondent started living with her own constructed house at Chhitoloriya. Here, in this case it has been raised that respondent wanted to grab the land of petitioner but in this regard the respondent looked after the child and managed to get the marriage 5 FA No. 47 of 2021 ceremony and she has also made expenditure to construct the house of her own and there is no any clinching evidence as to show the intention of the respondent to grab the land of petitioner. However, this court has no jurisdiction to decide the dispute of property rather it has to look cautiously the proof of ground taken by the petitioner. The petitioner adduced the evidence that the respondent has deserted him since very long but the evidence of respondent another witnesses adduced that the petitioner is working at Delhi. Further he started living with another woman namely, Sujata Devi as wife and husband for that a case has been instituted in the year 1990 but in that case it was compromised and respondent left proper steps in that case. Hence the case disposed. Further respondent has also filed a case against her husband and Sujata Devi vide Deoghar Town P.5 Case no. 317/17 u/s 307, 323, 379, 498 A & 506/34 IPC and respondent also lodged entire case vide Deoghar Sadar P.S. 227/16 against her husband and Uttam Kumar u/s 498 A, 406, 428,380/34 IPC and these case are lodged against husband and otehr for committing offence with respondent Furthermore, that petitioner participated in the marriage ceremony of his child and there was no any complain for desertion. Further refusal of cohabitation was not shown by the respondent herself rather her evidence shows that there has been leading of con- jugal life in between both at the time when he comes from Delhi. So far as the cruelty is concerned the court has to look and scrutinize the materials whether there has been physical or mental cruelty in this regard no evidence is brought by the petitioner that he has been subjected to cruelty by any assult or torturing rather the act of petitioner al- ways to oust the respondent from his life whereas respondent never wanted to dissolve her marital life and the cases filed against each other does not amount to make cruelty. In this case two child are attached to the respondent and they never came before this court.
Further important fact of cruelty is of such type that it becomes impossible for spouses to live together as relied in a case of Nilu Kohli Vrs Navin Kohli AIR 2004. 2 SCC 73 in which it has been laid that that cruelty postulates a treatment as to cause a reason- able apprehension in his or his mind that it would be harmful or injurious for the petitioner to live with other party. It would ofcourse be difficult to define the expression of cruelty. There cannot be any hard and fast rule in interpreating the same and the word 'cruelty' cannot be put in straight jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances.
18. Further desertion means that desertion of the petitioner by the other party to the mar- riage without reasonable cause and without consent or against wish of such party and includes willful neglect of the petitioner by the other party. The escence of desertion, as judicially understood, is a total repudiation of the obligation of marriage or an abun- dunment of the deserted spouse with an intention to bring the cohabitation permanently to an end as relied in a case of Rohini Kumari Vrs Narendra Singh, AIR 1972 S.C.
459. Further in another case of Manjit Kaur Vrs Mohan Singh reported in AIR 2007 NOC 66 in which it is held that where husband was working in army and used to come to his house during the period of leave granted by army authorities and wife used to accompany him whenever he was on leave and residing at his house, the mere fact that the wife was not residing in his absence in the matrimonial home cannot be said that she had deserted her husband. Further mere physical separation between the spouse or mere intention of one to separate from the other without any overt act would not be itself amount to desertion. It is not the withdrawal from place but from a state of things. In view of that in the present case both the spouses are employed and working at different places and when time to time they met to each other and performed the familar obligations or the rituals in the 6 FA No. 47 of 2021 marriage ceremony of their children. Further the OP/ respondent never refused to cohabit with the petitioner."
Findings
17. We have heard learned counsels for both the parties and perused the records of the case. From the evidence of appellant, we find that appellant has made allegation of desertion and has alleged that respondent is living separately from the appellant since more than 24 years and there was no cohabitation between them during the intervening period. But, in the evidence it has come that appellant was appointed as a teacher in Central School at Delhi and retired from the post of Principal in the year 2012 and respondent also joined in Government Service and she retired as Head Mistress in Upgraded Middle School Chitto Lorhiya, Deoghar. So, both the appellant and respondent were employed as teachers, appellant was posted as teacher in Central School, Delhi and respondent was posted as teacher in Deoghar in erstwhile State of Bihar and now, Jharkhand. Hence, both appellant and respondent were discharging their duties at two different places and this can be considered as a family arrangement. Furthermore, in the evidence it has come that Rahul Raj Tandan, is the of son of appellant and respondent and marriage of Rahul Raj Tandan, was solemnized in the year 2006 and appellant had participated in his son's marriage and had discharged the ritual of marriage as father and in this regard, respondent has filed three photographs, which were marked as Ext.-A to Ext.-A/2, without objection. Hence, appellant has failed to prove the factum of separation. In the impugned judgment also, learned Principal Judge, Family Court, Deoghar, rightly came to the finding that there is reasonable ground to live separately and there is no any intention to refuse the marital status by the respondent.
18. So far as allegation of cruelty is concerned, in the evidence it has come that appellant was living with a women named Sujata Devi and leading conjugal life with her, as a result of which respondent had filed Complaint Case no. 390/1990 before the court of CJM, Bhagalpur, but, later, on matter was compromised. Hence, it was respondent who compromised and wanted to save her marital life and in other words it can be said that respondent was subjected to mental cruelty by her appellant husband. Therefore, appellant has failed to prove, by evidence, either mental cruelty or physical cruelty on him by the respondent.
19. In view of aforesaid discussions, we do not find any reason to 7 FA No. 47 of 2021 interfere with the impugned judgment dated 20.03.2021passed in Matrimonial (Divorce) Case no. 138 of 2016, by the Principal Judge, Family Court, Deoghar.
20. Accordingly, F.A. No. 47 of 2021 is dismissed.
(Ratnaker Bhengra, J.)
I agree
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
Jharkhand High Court, Ranchi,
Dated:10/ 9 /2024
S.B.
8 FA No. 47 of 2021