FIRST APPEAL No. 179 OF 2003 Against the Judgment and Order dated 25.07.2003 passed by Sri Jawahar Prasad Ratnesh, 5th Addl. District Judge, Munger in Title Suit (Matrimonial) Case No.10 of 1994. FAGU RAUT @ FAGUNA ROUT ……………..… Applicant/ Appellant Versus SMT. LEELA DEVI @ JANKI DEVI . …………. Opposite Party/ Respondent *************** For the Appellant : Mr. Mukul Prasad, Advocate, For the Respondent : None. Dated : 6th day of April, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The husband-applicant has filed this First Appeal against the Judgment and Order dated 25.07.2003 passed by Sri Jawahar Prasad Ratnesh, the learned 5th Addl. District Judge, Munger in Title Suit (Matrimonial) case No.10 of 1994 dismissing the appellant’s suit for dissolution of marriage with the respondent. 2. The appellant filed the aforesaid matrimonial suit praying for dissolution of the marriage with respondent, Janki Devi and also prayed for custody of the children. 3. The appellants claimed the aforesaid relief alleging that he married with the respondent, Leela Devi@ Janki Devi in the year 1975 according to Hindu Custom. Out of the wedlock one son aged about 15 years and two Mungeshwar Sahoo, J. 2 daughters aged about 13 and 10 years were born. At the time of filing of the suit in the year 1994, another child was born but the child died soon after the birth. In 1989, Janki Devi was employed in Munger Municipality as Sweeper and she developed illegal relation with one Bishwanath Rout who are Jamadar in Munger Municipality and then she started neglecting the appellant and started treating him with cruelty. She used to spend nights in the house of Bishwanath Rout. Ultimately, on 17.12.1989, she shifted and started residing with Bishwanath Rout and thereafter she never returned. She married with Bishwanath Rout on 20.12.1990. The applicant came to know that she has filed a divorce petition against him bearing him Title Suit No.5 of 1991 which was dismissed for default. 4. The further case is that the respondent persuaded the children to leave the applicant and reside with her and accordingly children started living with her and they are extorting money from the appellant. He had purchased homestead land in the name of respondent but she sold it. 5. After being noticed, the respondent appeared and filed contesting written statement. She admitted marriage with the appellant in 1975 and she also admitted about the children. The main defence is that she was never employed in Munger Municipality as Sweeper. She also denied illegal relation with Bishwanath Rout and also denied allegation of adultery. It is alleged that she does not know Bishwanath Rout nor she lived with him. According to her written statement, the appellant is employed in railway and has bad habit of wine and women. He developed relation with one Sharmila Devi, daughter of Nepali Ram and kept her at his residence. The respondent protested whereupon the appellant ousted the respondent from his house and compelled her to go and reside with her parents. The respondent has not deserted her husband nor she lived with Bishwanath in his house with 3 her children. The allegation of marriage with Bishwanath is also denied. Allegation of filing of any divorce petition against the appellant was also denied. It is further alleged that the appellant forced her to file divorce petition in the Court bearing case No.5 of 1991. Since she is illiterate lady, she was not knowing the contents of the petition and because it was forcibly got filed by the appellant, the respondent is not bound by the statements made in the application. She never persuaded children. They are major and they themselves left the appellant. All other allegations were also denied. 6. It may be mentioned here that Bishwanath Rout was also made opposite party No.2 in the suit who did not appear, however, it appears that in this appeal, he has not been made party. 7. On the basis of the above pleadings, the learned Court below framed the following issues : (i) Is the suit as framed maintainable? (ii) Has the applicant got any valid cause of action to sue? (iii) Is the respondent Janaki Devi lives under adultery with Bishwanath Raut? (iv) Has the respondent Janaki Devi deserted the applicant willfully at least prior to two years from the filing of the case? (v) Was the applicant ill-treated and subjected to cruelty by the respondent Janaki Devi? (vi) Whether the applicant is entitled to get custody of the children? (vii) Whether the applicant is entitled for any other relief? (viii) Is the applicant is entitled for the costs of the suit? 8. After trial, the learned Court below found that applicant-appellant did not produce reliable evidence to prove adulatory of Janaki Devi with Bishwanath Rout. The learned Court below also found that the applicant failed to prove that the respondent willfully and voluntarily deserted applicant rather it is the applicant who does not want to keep Janaki Devi with him. 4 The applicant also failed to prove marriage of Janaki Devi with Bishwanath Rout. The learned Court below also found that the applicant failed to prove cruelty. On these findings, the learned Court below dismissed the application for divorce. 9. The learned counsel appearing on behalf of the appellant submitted that there are overwhelming evidence available on record regarding the marriage between Bishwanath Raut and Janaki Devi but the learned Court below wrongly rejected all those evidences and held that the appellant failed to prove marriage. The learned counsel further submitted that the respondent herself filed divorce case against the appellant but the learned Court below disbelieved the same also. The learned counsel further submitted that admittedly the respondent is living separate from the appellant and, therefore, intentionally she deserted the appellants and on this score alone, the appellant’s application for divorce is to be allowed. The learned counsel further submitted that the appellants also pray for dissolution of marriage on the ground of cruelty but the learned Court below did not rely upon it. The learned counsel further submitted that the learned Court below wrongly not relied upon the documentary evidences also. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to be set aside and the appellant’s suit be decreed. 10. As stated above in spite of service of notice, the respondent has not appeared. It may be mentioned here that Bishwanath Raut who was opposite party No.2 in the Court below has not been made party in this First Appeal. 11. In view of the submissions of the learned counsel for the appellant, the point arises for consideration in this Appeal is as to whether the 5 applicant-appellant has been able to prove the grounds for dissolution of marriage, i.e., adultery, desertion and cruelty and whether the impugned Judgment/Order and decree are sustainable in the eye of law. 12. The applicant-appellant case so far adultery is concerned is that the respondent was employed in Munger Municipality as Sweeper and she developed relation with Bishwanath Raut and thereafter she married with Bishwanath Raut and started living with him. To prove this fact, the appellant has adduced evidence. The applicant himself has been examined as A.W.1. He has stated that in 1975 he married with Janaki Devi. Since 1989, his wife got employment as Sweeper in Munger Municipality and during that period, she developed love affairs with Bishwanath Raut who was Jamadar in Munger Municipality. Then, she stopped to come to the house and ultimately on 1712.1989, she left the house of the appellant. She married with Bishwanath Raut in 1990 before Executive Magistrate. From perusal of the cross-examination at paragraph 9 of this witness, it appears that he has clearly stated that he does not know Bishwanath Raut nor he has seen him. He has also stated that whatever statement he has made in the examination in chief has been made on the basis of hearsay. Therefore, the applicant himself has neither seen nor know about Bishwanath Raut. Only allegation have been made in the plaint and in the examination in Chief that Janaki Devi developed love affairs and she married with him. Peculiarly although Bishwanath Raut was opposite party No.2, he has not been made party in this First Appeal. 13. A.W.2 has also stated marriage of Janaki Devi with Bishwanath Raut but in the cross-examination at paragraph 7, he has also expressed ignorance about Bishwanath Raut. Likewise no doubt, A.W.3 has also stated about marriage of Janaki Devi with Bishwanath Raut but at paragraph 9 of 6 his cross-examination, he has clearly stated that he had heard about marriage. These are the oral evidences on the question of marriage between Bishwanath and Janaki Devi. As discussed above all the oral evidences on the question of marriage is hearsay. On the contrary, O.P.W.1 has stated that after drinking, Fagu Raut used to assault his wife Janaki Devi, and, therefore, Janaki Devi lives with her parents. O.P.W.2, Premlata Kumari is daughter of the parties. She has also stated that her mother lives with her parents because the appellant has ousted from the house after assaulting. 14. To prove marriage Ext.3 and 3/C, two affidavits have been filed. These affidavits have been sworn before Executive Magistrate. From reading of these affidavits, it appears that it is mentioned in the affidavit that Janaki Devi married with Bishwanath Raut. What was the occasion for swearing of this affidavit has not been stated. Moreover on the basis of affidavit, it cannot be said that marriage was performed. The appellant has not explained the suspicious circumstances regarding the fact that when he had not seen Bishwanath Raut nor he knows about him and he had only heard about his marriage then how he came to know that on particular date, affidavits were sworn. This itself clearly indicate that something foul is being played. On the basis of this affidavit, no finding can be recorded that in fact Janaki Devi was living with Bishwanath Raut and she married with Bishwanath Raut. Moreover according to the applicant/appellant’s case itself is that prior to filing this case another child was born to them who died. 15. In view of my above discussion, I find that the plaintiff failed to prove the allegation that Janaki Devi was leading adulterous life with Bishwanath Raut and she married with him and she is residing with him. So far question of desertion is concerned, the case of the appellant is that the wife Sita Devi deserted him as she is living with Bishwanath Raut. The 7 learned counsel for the appellant submitted that Janaki Devi herself has filed divorce case No.5 of 1991. Ext.4 is the ordersheet of said divorce case. So far this case is concerned, it is the case of Janaki Devi that she forcibly got the said case filed by her. From perusal of Ext.4, the ordersheet, it appears that the said case has been dismissed for default. Therefore, now, on the basis of this Ext.4 also, it cannot be said that the respondent, Janki Devi is living with Bishwanath Raut or married with Bishwanath Raut. As discussed above, the witnesses examined on behalf of the respondents including the daughter of the appellant have clearly stated that the appellant was assaulting her and in fact he drove her out with the children from the house and, therefore, they are living in the house of parents of Janaki Devi. Now, therefore, from the evidences, it is clear that the circumstances is created by the appellant by assaulting the respondent and then he drove her out from the house. In such circumstances, now he cannot be allowed to say that the respondent deserted by not living with him. It is well settled principal of law that one cannot be allowed to take advantage of his own mistake or fault. Here the act of the appellant is not a mistake even rather he intentionally drove her out. In my opinion, therefore, it will not amount to desertion. Separate living of respondent with her parents is not intentionally but because of wrongful act of appellant himself. Therefore, the appellant cannot be allowed to take benefit of his wrongful act. 16. From perusal of the impugned Judgment, it appears that after considering the facts and circumstances of the case, the learned Court below observed that the appellant with a view to obtain divorce created a fake person in the name of Bishwanath Raut. It further appears that the maintenance case was filed by one lady, namely, Surmila Devi against the appellant which indicate that appellant himself is married with Surmila Devi. 8 Ext. ‘A’ and ‘B’ have been filed on behalf of the respondent to prove the fact that Surmila Devi has filed maintenance case No.33M/94. From the above facts and circumstances discussed, it appears that the appellant got created the two affidavits, got the divorce case filed by Janaki Devi and created a fake person, namely, Bishwanath Raut about whom none of the witnesses or the appellant knows anything and then this case for divorce has been filed. In absence of Bishwanath Raut, no finding can be recorded that Janaki devi is living adulterous life with him or that Janaki Devi has married with Bishwanath Raut. As stated above, Bishwanath Raut has not been made party-respondent in this appeal. Therefore, the finding recorded by the Court below on these points about adulatory and desertion is hereby confirmed. 17. So far cruelty is concerned, it appears that appellants has only stated that the respondent was ill treating. Except this statement, there is no material available on record. On the contrary, we have seen above that the respondent and her daughter O.P.W.5 and O.P.W.2 has stated that after drinking, the appellant was assaulting Janaki Devi and that she has been driven out from the house. I, therefore, find that the appellant has failed to prove the allegation of cruelty also. The finding of the learned Court below on this point is, therefore, confirmed. 18. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 6th day of April, 2011 Sanjeev/N.A.F.R.