IN THE HIGH COURT OF JUDICATURE AT PATNA ------------ Miscellaneous Appeal No.333 of 2010 -------- Appeal against the judgment and decree dated 25-3-2010 passed by the Principal Judge, Family Court Patna in Matrimonial Case No.47/98. -------- Sanju Devi, Wife of Nawal Kishore Vidyarthi, D/o Sri Ramchandra Paswan, Resident of Village- Bari Kewai, P.O. Daniyawan, District, Patna..................................................... Appellant Versus Nawal Kishore Prasad Vidyarthi , son of Shri Shiv Narayan Prasad, R/o Village- Din Manjholi, P.S. Bakhtiyarpur, District- Patna at present residing at Giridih, P.S. Giridih, District- Giridih................................................Respondent -------- For the Appellant :- Mr.D.K.Sinha,Sr. Advocate & Mr. Bajrangi Lal,Advocate For the Respondents:Mr. Yogendra Pd. Sinha, Sinha, Advocate Mr. Rudradeo, Advocate ------- 5 17-11-2011 Heard the parties at the stage of Order 41 Rule 11 of the Civil Procedure Code. 2. This appeal under section 19 of the Family Courts Act is directed against the judgment and order dated 25th March, 2010 whereby Matrimonial Case No. 47 of 1998 preferred by the respondent-husband seeking divorce under 2 section 13 of the Hindu Marriage Act has been allowed by the Principal Judge, Family Court, Patna after recording a finding that the husband has established a case of mental cruelty. The marriage in question was solemnized as per Hindu rites on 20th June, 1991. According to the case of the husband, the appellant, after marriage lived at the ancestral house of the husband for about a week and then both went to Dumka where the father of the husband was posted and lived there for about eight months. The husband was posted at Giridih and there she lived with him till 19th April, 1993. During that time she became pregnant and went to her parents house on 20th April, 1993. She came back to her matrimonial home in June, 1993 and delivered a female child on 31st. August, 1993. On 13-2-1994 her father took her to his house where she lived till July 1995. When she came back to Giridih her behaviour had changed. She became very harsh and cruel and did not care for her husband. She stopped preparing food and as a result the husband had to cook food for the whole family after returning from his office. She dis-associated herself from society of the petitioner and the conjugal relationship ended 3 from 20th July, 1995. The husband has alleged that at one time when respondent-wife went to live with his parents at Dumka, her behaviour was disrespectful as she always used to abuse and threat them that she would implicate them in cases as her father was a Sub-Inspector of Police. She started abusing husband also even at Giridih. The husband had fallen ill on 8-4-1993 and after vomiting blood he was confined to bed but the wife did not care for him. He called a friend Dhirendra to look after him but the wife abused Dhirendra Kumar and as a result he left after two days and thereafter she also left for her Naihar. While living with the husband, she used to go out of the house after locking the door as a result the petitioner had to wait out-side for hours. At times she left the house and came back after 3-4 days. On putting questions she used to lose her tamper and abuse the entire family. She threatened to commit suicide if any attempt was made to obstruct her behaviour and movement and therefore on account of desertion and mental cruelty a petition for divorce was filed in April 1998. 3. The appellant appeared in the case on 17-6-1998. She was asked to file written statement and participate in 4 reconciliation proceeding Vide order dated 25-8-1998, she was debarred from filing written statement unless she filed the same by the next date i.e. 25-9-98. But she still did not file any written statement. She did not appear for reconciliation also and as recorded on 17-4-2001, the reconciliation proceeding was held to have failed. On 26-9- 2001 issues were filed on her behalf and ultimately issues were framed on 3-1-2002 on the basis of pleadings of the husband because no written statement was filed on behalf of appellant. The recording of evidence began thereafter. The statements of P.W.1, Bindeshwar Paswan and P.W.2 Arvind Kumar were on affidavit and both the witnesses appeared for cross-examination but they were not cross-examined as none appeared for the appellant/respondent. The witnesses were discharged. P.W.3, Satyendra Prasad and P.W.4, Nawal Kishore Vidyarthi ( respondent herein ) were also not cross-examined despite sufficient opportunity. All the four witnesses examined on behalf of husband, thus, remained intact in absence of any cross-examination. Subsequently, a petition was filed for recall of the witnesses which was rejected on 27-4-2005. Civil Revision No. 135 5 of 2007 preferred by the appellant against that order was dismissed by this Court on 26-4-2007. 4. When the case was posted for argument on 4-8- 2009 another petition was filed on behalf of appellant under section 10 read with section 151 of the Code of Civil Procedure for hearing of the divorce case as analogous to a case filed by the appellant in the year 2009 bearing matrimonial case no. 291 of 2009 under section 9 of the Hindu Marriage Act for restitution of conjugal rights. That petition was rejected on 25-8-2009. Civil Revision preferred against that order bearing C.R. No. 1671 of 2009 was disposed of by this Court without interfering with the said order but with a direction to explore the possibility of the parties living together once again. Since no compromise petition was filed and reconciliation attempt failed, the matter was reported to the High Court and by order dated 17-2-2010 this Court directed the court below to proceed with the case and decide the same in accordance with law. 5. The main issues before the court below were whether the wife had treated the husband with cruelty and deserted him and whether the husband was entitled to a 6 decree of divorce. 6. These two main issues framed as issue nos.3 and 4 were taken up together. From the evidence of P.Ws.1,2,3 and 4 which had remained un-rebutted on account of there being no cross-examination, the court below found that the husband was able to establish a case of mental cruelty which was dangerous and harmful for the husband to live with the respondent-wife. 7. Before us the only submission was that the court below should have given opportunity to the appellant to file written statement and should have recalled the witnesses for cross-examination. Had those orders of the court below declining to permit the appellant to file written statement at a belated stage and refusing to recall the witnesses, not been challenged by the appellant before this Court through filing of civil revision applications, this court could have considered it on sympathy or on the touch stone of justice but no such consideration can be bestowed now because the civil revision applications preferred against those orders were considered on merits and no relief was granted by this Court. Even otherwise, the conduct of the appellant as 7 noticed from the records of the lower court do not leave any scope for prolonging the matter any further when she herself chose not to file written statement even after grant of sufficient opportunity and even took no interest in cross- examining the witnesses on various dates when they were examined and discharged. It is apparent that the appellant was interested only in delaying the matrimonial suit for reasons best known to her. 8. On merits it is found that P.W.1, Bindeshwar Paswan has supported the case of the husband by claiming that he saw and heard the appellant giving threat that she is daughter of Daroga and had not come to matrimonial house to cook food or to take care of him. He has deposed that she is treating the husband’s family as servant and threatens to implicate them in false cases. P.W.2, Arvind Kumar is cousin brother of the husband and according to him also the behaviour of the appellant was not proper as she used to abuse and insult them. She used to threat them that she would implicate them in cases. He has narrated that when the husband fell ill and vomitted blood, he went to see him and did not find wife’s behaviour proper. She was not 8 taking care of him and went to her Maika. He has supported that the husband had called Dhirendra to look- after him. P.W.3, Satyendra Prasad is cousin brother of the husband. He has also supported the entire case of the husband by deposing all the relevant facts. He also heard the wife abusing and treating the husband’s family like servant. He has deposed that she used to leave the house without any information even for 3-4 days and on questioning, she abused the husband. He deposed that relationship of husband and wife between them had broken since April, 1993. P.W.4 is the husband himself who has supported the case and has brought on record descriptions of two doctors to support that he had fallen ill seriously. 9. On perusal of the materials and the evidence available on record, we find that the husband has proved his case and the judgment and decree passed by the lower court suffers from no illegality so as to warrant interference. It may be mentioned that mediation proceeding in this court also yielded no result. 10. The appeal has no merit. It is dismissed. However, there shall be no order as to costs. 9 11. It is made clear that payment of alimony shall be governed by the order and observations of the court below as mentioned in paragraph-19 of the judgment under appeal. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)