Jharkhand High Court
Bhaskar Mishra vs Mrs. Mala Jha @ Gudiya on 4 February, 2020
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
(Civil Appellate Jurisdiction)
F.A. No.135 of 2015
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Bhaskar Mishra, son of Sri Laxman Mishra ....... Appellant Versus Mrs. Mala Jha @ Gudiya, wife of Sri Bhaskar Mishra ..... Respondent ............
Present Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Kailash Prasad Deo ....
For the Appellant :Mrs. Ritu Kumar &
Mr. Vikash Kumar, Advocates
For the Respondent :
.....
By Court Heard, learned counsel for the appellant.
Respondent has chosen not to contest the appeal even after valid service of notice through paper publication as previous attempts to effect service upon her through ordinary process as well as registered cover had failed.
Appellant is the husband aggrieved by the dismissal of Title Matrimonial Suit No.267 of 2014 vide judgment dated 23.07.2015 decree dated 04.08.2015 rendered by learned Principal Judge, Family Court, Bokaro whereby the suit instituted for divorce under Section 13 (1) (i-a) on grounds of cruelty under the Hindu Marriage Act,1955 got dismissed.
Briefly stated the case of the parties is as under.
Petitioner-husband through his plaint asserted that marriage was solemnized with the respondent on 18.02.2013 as per Hindu Rites and Custom at Village- Fulkahi, P.S., Rayam Sugar factory, District, Darbhanga, Bihar. After marriage she accompanied him to the matrimonial home at his native village and stayed there for five days. Thereafter, she came to live with him at Co-operative Colony, Bokaro, since petitioner is a permanent employee of Bokaro Steel Plant and was living with his parents. He alleged that respondent started indulging in quarrel with her in-laws on petty matters and was reluctant to undertake any domestic chores. She always used to avoid cooking and remain busy on cell phone. Her parents instead of persuading her, started chiding the petitioner on being informed. She threatened to commit suicide and put the petitioner and his parents behind the bars in a false dowry case. On 21.03.2013 without the permission of the petitioner and his family members the respondent was taken 2 away by his father despite objection by the petitioner. Petitioner and his parents were also threatened with dire consequences. When petitioner tried to bring her back she did not agree nor her parents send her back. Earlier Title Matrimonial Suit no.258 of 2014 was filed for divorce by the petitioner but the same was withdrawn. According to the petitioner, respondent is liable for desertion since 21.03.2013 and is not desirous to resume the conjugal life. Therefore, the petitioner prayed for decree of dissolution of marriage in his favour.
During the proceedings of the suit despite publication of notice in daily newspapers and after sufficient opportunities she did not appear to contest the suit which proceeded ex-parte vide order dated 10.06.2015. On the basis of the pleadings of the plaintiff-husband the learned Family Court posed the issue for determination inter alia whether the suit is maintainable in its present form? and whether petitioner is entitled for dissolution of his marriage with the respondent?
Two witnesses are examined in support of petitioner's case namely, P.W.1 Bhaskar Mishra (petitioner) and PW.2 Laxman Mishra his father. P.W.1-Bhaskar Mishra (petitioner) supported the case during his deposition. So did P.W.2. Learned Family Court, however was not satisfied that the allegations made by the petitioner of frequent quarrels on frivolous matters; not cooking food and remaining busy on cell phone and threats to commit suicide and implicate them in false dowry case were supported by any independent witness. The meaning of the expression 'cruelty' defined under Section 13 (1) (i-a) of the Act, 1955 was discussed, in the context of the pleadings and evidence brought by the petitioner but according to the learned Court they did not appear to be so grave and weighty to cause dissolution of marriage. They could be treated to be ordinary wear and tear of married life. The Suit was accordingly dismissed.
Certain significant developments which have taken place during pendency of this appeal have been brought on record by the appellant through a Supplementary Affidavit dated 13.08.2018.
Learned counsel for the appellant submits that appellant was subjected to a criminal case i.e. F.I.R. No.676 of 2014 lodged at Faridabad Police Station Central on 14.11.2014 by the respondent under Sections 498A/406/323 of the IPC.
After proper trial in which the prosecution examined five witnesses including the respondent- Mala Jha and her family members and the 3 Investigating Officer, the learned Trial Court did not find the charges proved beyond reasonable doubt.
Appellant was acquitted of the charges vide judgment dated 29.07.2017 passed by learned Chief Judicial Magistrate, Faridabad. The respondent did not rest at that and moved in appeal before the learned Additional Sessions Judge, Faridabad in Cr.A.No.-915 of 2017. Learned Additional Sessions Judge, Faridabad vide detailed judgment dated 20.07.2018 was pleased to dismiss the appeal holding that the learned trial court had rightly acquitted the accused from the charges framed against him and the impugned judgment did not suffer from any illegality or infirmity. Learned counsel for the appellant has also referred to Complaint Case No.14783/ 2014 filed by the respondent before learned Ilaka Magistrate, Faridabad under Section 12 of the Domestic Violence Act, which is pending. In the said case, an interim maintenance of Rs.3,000/- has been allowed from the date of filing of the application vide order dated 03.01.2018. Respondent has also filed a case under Section 125 of the Code of Criminal Procedure for grant of maintenance in which also vide order dated 23.10.2017 an interim maintenance of Rs.3,000/- has been awarded from the date of filing of the application. The order sheet of these two cases are annexed as annexures-2 and 3 to the Supplementary Affidavit. Appellant has challenged the interim maintenance awarded under Section 125 Cr.P.C. before the Hon'ble Punjab and Haryana High Court in Criminal Revision (F. No.504 of 2017).
Learned counsel for the appellant submits that respondent despite having lodged several cases against the appellant at Faridabad, which she is regularly attending, has deliberately avoided to appear in the present appeal despite substituted service of notice.
It is submitted that the acquittal of the appellant in a criminal case instituted by the respondent on charges of cruelty in marriage under Sections 498A and under 406, 323 of the IPC and the dismissal of the criminal appeal preferred by the respondent rendered by the learned Additional District & Sessions Judge, Faridabad shows that appellant has been subjected to mental and physical cruelty by making false accusations. Learned counsel for the appellant submits that imputation of false allegation has been treated to constitute mental cruelty in the decisions rendered by the Apex Court in the case of K. Srinivas Vs. K. Sunita (2014) 16 SCC 34. Reliance has also been placed on the decision 4 in the case of K. Srinivas Rao vs. D.A. Deepa, reported in (2013) 5 SCC 226.
Learned counsel for the appellant has also relied upon the decision of Hon'ble Apex Court in the case of Durga Prasanna Tripathy vs. Arundhati Tripathy, reported in (2005) 7 SCC 353.
It is submitted that respondent is completely disinterested in maintaining matrimonial relationship with the appellant. Her conduct shows complete apathy towards the appellant, who has been suffering from indignity. Her desertion is on unreasonable grounds since 2013. Indifference to the conjugal life is exhibited by her non-appearance before the Family Court in the instant divorce suit, as also in the present appeal despite several efforts to effect service upon her and lastly through paper publication. In these circumstances, this Court should take due judicial notice of the subsequent developments i.e. the acquittal of the appellant of a serious criminal charge of cruelty in marriage during pendency of this appeal and record a finding of mental and physical cruelty against the respondent. The marriage has only remained a legal tie with no emotional bonds left. Maintaining a legal tie in those circumstances itself constitutes mental cruelty as held in the case of K. Srinivas Rao vs. D.A. Deepa (Supra). As such, no purpose would be served in maintaining a one sided matrimonial relationship in which the respondent spouse is totally disinterested.
The facts and circumstances of the present case also prove that marriage between the parties has irretrievably broken out. As such, the appeal may be allowed.
We have considered the submissions of the learned counsel for the appellant and taken note of the pleadings and evidence from the Lower Court Records. We have also perused the impugned judgment. The husband-appellant being agitated with the abnormal behavior and conduct of the respondent in day to day conjugal life, approached learned Family Court, Bokaro for dissolution of the marriage on grounds of cruelty in Title Matrimonial Suit No.267 of 2014. Respondent chose not to contest the suit, but the suit was dismissed as the learned Family Court did not find the ingredients of cruelty made out on the part of the petitioner. It however recorded that respondent resided only between 19.02.2013 to 21.03.2013 with the petitioner. However, since no independent witnesses were examined to support the allegations of cruelty apart from the two witnesses namely, the petitioner-husband and his father, learned Family Court 5 had held that such complaints of cruel behavior were not serious enough to decree the suit by dissolving the marriage. It however, appears that after the suit was instituted, the respondent had lodged a criminal case under Sections 498A/406/323 of the IPC at Police Station, Central Faridabad on 14.11.2014. This prosecution after a proper trial ended up in acquittal of the appellant- husband despite five witnesses adduced by the prosecution including the respondent complainant as P.W.2. Respondent being dissatisfied even preferred an appeal which has been dismissed by the judgment dated 20.07.2018 Criminal Appeal No.915 of 2017 rendered by the learned District & Sessions Judge, Faridabad, annexure-2 to the supplementary affidavit.
Perusal of the judgment in appeal shows that the appellate court after thorough discussion of the case of the appellant found that the charges framed against the accused- husband were not made out and as such the findings of the learned court were found not to suffer from any illegality or infirmity. In effect, the allegations of cruelty in marriage have remained unsubstantiated . Such false accusations in matrimonial relationship and that through a long drawn criminal trial ending in acquittal entails enough mental and physical cruelty upon the other spouse which the appellant had to suffer.
In the case of Sunita (supra) the Hon'ble Apex Court after referring to the decision in the case of K. Srinivas Rao vs. D.A. Deepa (Supra) held that intentionally filing of the false complaints calculated to embarrass and incarcerate the husband and members of his family are such conduct which unquestionably constitute cruelty as postulated in Section 13(1)(i-a) of the Hindu Marriage Act. In the case of K. Srinivas Rao vs. D.A. Deepa (Supra), the Hon'ble Apex Court has referred to several precedents on the point as to the effect of filing of false criminal cases by either of the spouse. It has been held that if a false criminal complaint is preferred by either spouse, it would invariably and inevitably constitute matrimonial cruelty, such as would entitle other spouse to claim a divorce. The judgment of the acquittal rendered by the criminal court between the parties can be duly taken notice of in the present appeal between the same parties on the plea of divorce by the aggrieved husband. Apart from that we find that the respondent has shown complete indifference and apathy to the conjugal life as she has neither appeared to contest the suit nor chosen to appear in the present appeal despite notice by the paper publication.
6Had she appeared, the court would have made efforts to find out an amicable resolution of their matrimonial dispute in the spirit of the Hindu Marriage Act, Section 23 and Section 9 of the Family Court Act. However, such a recourse could not be adopted because of her evasiveness. It can therefore, be safely inferred that respondent is no longer interested in maintaining matrimonial relationship with the petitioner-appellant herein.
It would therefore, be futile to maintain a legal tie of matrimonial relationship in namesake moreover when the appellant has been acquitted of the false criminal charges. As such, we are satisfied that appellant has been able to make out grounds of cruelty for dissolution of the marriage as conceived under Section 13(1)(i-a) of the Hindu Marriage Act.
Marriage between the parties stands dissolved.
Accordingly, the instant appeal is allowed. Decree accordingly.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 04.02.2020 Jay/R.S.