Jharkhand High Court

Sanjay Kumar vs Srimati Suman Kumari on 8 September, 2020

Equivalent citations: AIR 2020 JHARKHAND 113, AIRONLINE 2020 JHA 533

Author:
Rajesh Kumar

Bench:
H.C. Mishra
,
Rajesh Kumar

F.A. No. 47 of 2019
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 47 of 2019
(Against the Judgment dated 05.10.2018 and Decree of dismissal
dated 28.11.2018 passed in Original Suit No.174 of 2016 by Principal
Judge Family Court, Giridih.)
--------------

Sanjay Kumar .....Appellant
Versus
Srimati Suman Kumari .... Respondent
--------------
PRESENT
HON'BLE MR JUSTICE H.C. MISHRA
HON'BLE MR JUSTICE RAJESH KUMAR
--------------
For the Appellant : In person
For the Respondent : Mr. Sujit Neepulam, Advocate
--------------

The matter was taken up through Video Conferencing. The
appellant-in-person or the learned counsel for the respondent had no
objection with it and submitted that the audio and video qualities are
good.

--------------

C.A.V. on 27/08/2020 Pronounced on 08/09/2020

Rajesh Kumar, J.:- Heard the appellant-in-person and learned counsel for the
respondent wife.

2. The present appeal has been filed by the husband-
appellant/plaintiff against the Judgment dated 05.10.2018 and Decree
of dismissal dated 28.11.2018 passed in Original Suit No.174 of 2016
by the learned Principal Judge, Family Court, Giridih.

3. The suit has been instituted by the husband for divorce
under
Section 13
of the Hindu Marriage Act, 1955 on the ground of
cruelty, desertion and mental incapacity of the respondent-wife.

4. The Trial Court after considering the pleading of the
parties has formulated six issues for decision, which are as follows:-

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¼2½ D;k bl okn esa okn&dkj.k gS \
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¼4½ D;k izfrokfnuh us yxkrkj nks o"kksZ ls vf/kd le; ls oknh dk vfHkR;kx dj
fn;k
fn;k gS \
¼5½ D;k oknh fookg&foPNsn dk fMØh ikus dk gdnkj gS \
¼6½ D;k oknh fdlh vU; vuqrks"k ;k vuqrks"kksa dks ikus dk gdnkj gS \

F.A. No. 47 of 2019

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5. After analyzing the evidences, pleadings and argument of
the parties all the issues have been decided against the plaintiff-
husband and in favour of the wife-respondent vide impugned
Judgment dated 05.10.2018 and accordingly decree has been drawn
and signed on 28.11.2018.

6. Being aggrieved, the present appeal has been filed by the
appellant-husband and vide order dated 24.09.2019, delay in filing the
appeal has been condoned. It may be stated that in course of trial as
well as during the pendency of the appeal, efforts of mediation were
made between the parties, but all the efforts failed. Even during the
final hearing of the appeal, efforts of compromise were made by us,
but there could be no compromise between the parties. Hence we have
heard this appeal on merits.

7. Before this Court, the appellant-husband has taken two
points i.e. cruelty and desertion. Mental disability of the respondent-
wife has not been pressed. It is worth to note that the court below has
rejected the ground of mental illness as no evidence had been led by
the appellant-husband.

8. Considering the pleadings and arguments and material
available on record, two points are required to be considered by this
Court.

(i). Whether the respondent-wife has treated the
appellant-husband with cruelty warranting dissolution of marriage.

(ii). Whether residing separately by wife since
12.07.2014 amounts to desertion entitling husband for decree of
divorce as per the mandate of
Section 13
(i-b) of the
Hindu Marriage
Act, 1955
.

9. As per the pleadings of the husband, marriage had been
solemnized between the parties as per Hindu rites and rituals at
Mirzaganj on 29.01.2007 in presence of relatives and family members
of both the parties and they have lived as husband and wife at Ranchi
and Delhi. One son and one daughter have been born out from their
wedlock. As per appellant- husband, the respondent-wife always
behaved in a psychic and rude manner with the appellant-husband and
also with his parents and has treated him as well as his parents with

F.A. No. 47 of 2019

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utmost cruelty in different ways. The appellant-husband was
considerate and treated his wife with compassion and tolerated her
cruelty giving her time to mend her ways and even he allowed his
brother-in-law, namely Dinesh Kumar to live in their matrimonial
home at Ranchi in 2007-2008 to pursue his graduation course and on
successful completion of course he got job in Insurance Company.
Appellant-husband even encouraged his wife for higher studies and
accordingly she got admitted in M.A. (History) in Ranchi University
in June, 2007 but she did not pursue her course. Thereafter even she
was admitted in Indira Gandhi National Open University (IGNOU) for
M.A. (English), but in vein. In 2008, appellant-husband had searched
a job in English Nursery School as per her educational qualification,
but she refused to work. Just after one year of marriage, the appellant-
husband had taken his wife to marriage ceremony of her cousin sister,
namely, Poonam at Mirzaganj and on completion of the rituals, he
informed her parents regarding the cruel and rude behavior of his
wife. After coming back, her behavior became ruder. Ultimately, she
conceived and gave birth to a healthy male child. Even after birth of
the child, her behavior did not improve and after 20 days of birth she
had been taken to her parents' place by his father-in-law for better
care of child. Due to the behavior pattern of his wife and her family
members, appellant apprehended and accordingly he filed an
Informatory Petition in the court of C.J.M., Giridih apprehending
filing of false case against him and his family members for dowry and
domestic violence and requested the learned C.J.M., Giridih to send
the above mentioned Informatory Petition to Jamua Police Station and
Tisri Police Station with a direction to take necessary, preventive and
protective action so that no false case be instituted.

10. Thereafter, appellant moved to Delhi where he got job in
AIIMS. Appellant was desirous to bring his wife to Delhi but in the
meantime she moved to Giridih Tailik Sahu Sabha who held
panchayati on 08.11.2009 and as per dictum of panchayat, she went to
Delhi alongwith her husband where she resided for few months.
Appellant-husband wanted to bring his father to Delhi for treatment
which was refused by his wife and accordingly he died on 11.05.2010

F.A. No. 47 of 2019

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due to lack of proper care and treatment. In spite of death of his father,
he attended the marriage ceremony of his brother-in-law, which was
held on 05.06.2010 at Mirzaganj and performed necessary rituals.
Suddenly after marriage of her brother, namely Rupesh Kumar, she
came to Delhi without information on 28.06.2010 and called the
appellant in the morning at 7.00 A.M, when he had gone for a
breakfast in AIIMS canteen. He informed his wife to remain calm as
he will come and open the gate of the residence but she called the
police and created a scene. As appellant was getting threats, he again
filed an application dated 10.06.2010 in the office of S.P., Giridih.

11. The respondent-wife again went to her parents' place on
07.09.2010. When he went there to meet his wife and son, he was not
allowed to meet his wife and son in October, 2010 and January, 2011,
which amounts to cruelty. She further lodged an F.I.R. as Tisri P.S.
Case No.38 of 2011 dated 12.05.2011 under
Section 498A
/
of the
Indian Penal Code and 3/4 of the
Dowry Prohibition Act
. Compromise
had been arrived between the parties and on that basis he got bail.
That case is still pending for trial, and in spite of the fact that final
form had been submitted, still the C.J.M, Giridih has taken cognizance
in the case. As per the compromise, they again started living as
husband and wife but cruelty of the respondent-wife became more
intense and psychic behavior endangering the life of appellant as well
as his son. In the meantime, respondent-wife again became pregnant
and one day she left for her parents' place but appellant-husband took
her back from the railway station but ultimately with her maternal
uncle, namely, Praween Kumar, she went to her parents' place
on 03.07.2012. Appellant came to know from the independent source
in July-August, 2012 that she got the fetus aborted. The appellant
ultimately got job at Ranchi and as per desire of his wife, they again
started living as husband and wife from November December, 2012
but behavior of respondent-wife did not improve. She used to threat
him with suicide and has treated the appellant-husband with cruelty
and sometimes not allowed to enter the house if he got delayed due to
pressure of work. She used to bolt the house from inside due to her
psychic behavior. One day when they were returning after visiting a

F.A. No. 47 of 2019

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park she jumped from the car and ran towards the car on trivial issue.
Again she became pregnant and ultimately blessed with a female child
in 2014. One day he had been assaulted by the brother-in-law for
which he complained to Bariatu police station but subsequently he
withdrew the application but his wife has lodged a false criminal case
under
Section 498A
of the Indian Penal Code against the appellant-
husband in Bariatu police station and ultimately she left the
matrimonial house on 12.07.2014 out of her own will and since then
they are living separately and this amounts to desertion.

12. On 02.08.2014 a maintenance case being M.T.S. Case
No.232 of 2014 has been filed in which vide order dated 29.11.2016,
appellant-husband has been directed to pay Rs.25,000/- as
maintenance i.e. Rs.15,000/- for wife and Rs.5,000/- each for two
children. (However, it has been admitted in course of argument that
for about 11 months payment has not been made.)

13. In support of his pleadings, the appellant-husband has not
produced any documentary evidence, but has examined two witnesses,
one himself and his mother, namely, Kaushalya Devi.

14. Respondent-wife has filed written statement denying the
allegation of cruelty, desertion and mental illness. It has been alleged
that demand of dowry of Rs.2,00,000/- and a car could not be given to
appellant-husband and for extracting the same, respondent-wife had
been treated with cruelty and time to time, she had been ousted from
her matrimonial house. She has admitted that they had lived as
husband and wife at Ranchi and at Delhi. After birth of male child she
went to her parents' place but appellant-husband was not willing to
take her back and as such she approached the Tailik Sahu Sabha and
panchayati was held on 08.11.2009 and as per dictum of the panchayat
she was taken back to the matrimonial home. She has denied that she
has ever refuted for treatment of father of the husband rather she has
performed her duty towards parents of the appellant-husband. She has
further stated that as appellant-husband was harassing her for demand
of dowry and as such an FIR being Tisri P.S. Case No.38 of 2011 has
been instituted on 12.05.2011 under
Section 498A
of the IPC and

Section 3
/
of the Dowry Prohibition Act in which the wife readily

F.A. No. 47 of 2019

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accepted the compromise to save her marriage upon which as per the
terms and condition of the bail order, she was taken to the matrimonial
home. When she went to attend marriage of her brother and after
completion of marriage ceremony, appellant- husband came alone and
was not willing to take her back and as such she went to Delhi
alongwith her brother. To avoid the entry, husband locked the house
and went to the work place. Even after persuasion, when her husband
did not turn up, she had to get the help of Delhi police and upon
intervention of Delhi police a compromise had been arrived between
the parties and she had been allowed to enter into the matrimonial
home at Delhi. Even at Ranchi, she was always mistreated and
pressurized for bringing dowry or doing job. Ultimately, she had to
approach Bariatu police station by lodging Bariatu police case No.429
of 2013 under
Sections 498A
and
of the IPC in which also she
readily compromised. In spite of compromise, she was driven out of
matrimonial home on 12.07.2014 and since then she has not been
allowed to enter the matrimonial home, although she is always
desirous to save the matrimonial home and has participated in the
marriage of younger brother of her husband on 07.05.2017 at his
village.

15. In support of her pleading, she has examined four
witness, namely, Ashok Saw, Naresh Saw, Praveen Kumar and
herself. She has also produced documentary evidence i.e. Exhibit-A, a
mutual divorce application dated 13.07.2009 sent by the husband to
wife after signing. Exhibit-B, letter dated 30.07.2010 to her father
giving threat. Exhibit-C, Formal FIR of Tisri P.S. Case No.38 of 2011.
Exhibit-D, certified copy of the Charge-sheet of Tisri P.S Case No.38
of 2011. Exhibit D/a, certified copy of the charge-sheet of Bariatu P.S.
Case No.429 of 2013. Exhibit-E, certified copy of the order of framing
of charge of Tisri P.S. Case No. 38 of 2011, Exhibit-F, certified copy
of the compromise between the parties in Tisri P.S. Exhibit-G,
certified copy of the order dated 21.01.2012 in Tisri P.S. Case No. 38
of 2011, Exhibit-G/a, certified copy of the order-sheet of A.B.P. Case
No. 256 of 2011. Xerox copies of Panchnama of Tailik Sahu Sabha

F.A. No. 47 of 2019

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and information given by the wife-Suman Kumari to Delhi police
were marked as 'X' and 'Y' for identification.

16. The appellant-in-person has submitted that the impugned
Judgement and Decree passed by the court below are absolutely illegal
and against the evidence on record. It is submitted that on the basis of
the evidence on record, the cruelty of the respondent wife is proved by
him. It is also submitted that admittedly the respondent wife has filed
multiple criminal cases against him, in which the appellant had to
undergo jail, which in itself amounts to cruelty by the respondent wife,
thus entitling the appellant to the decree of divorce. In any event, the
desertion since 12.07.2014 is an admitted fact and this alone gives a
good ground for divorce. It is further submitted by the appellant-in-
person that in spite of the desertion for more than six years, no case
for restitution of the conjugal rights has been filed by the respondent
wife, which shows that desertion is voluntary on her part as well. He
has further submitted that there is irretrievable breakdown of marriage
between the parties, and on this ground also, the decree of divorce
should have been passed.

17. On the other hand, learned counsel for the respondent
wife has submitted that the court below has discussed the evidence of
both the sides in detail and has rightly decided all the issues against
the appellant and in favour of the respondent wife. As such, there is no
illegality in the impugned Judgement and Decree passed by the court
below, and this appeal is fit to be dismissed. Learned counsel has
submitted that the respondent is still willing to lead a respectable
conjugal life with her husband, but the husband is not willing to keep
her.

18. Having heard the appellant-in-person and learned counsel
for the respondent wife, we find that so far as first point raised by the
appellant regarding cruelty, it appears from the pleading of the
plaintiff-husband himself that he has given bald and sweeping
statements without providing any cogent documentary proof of the
same. There is only oral evidence of the appellant and her mother, but
the oral evidence adduced by the respondent wife in support of her
pleadings, are also supported by documentary evidence, which

F.A. No. 47 of 2019

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demolish the case of cruelty, as pleaded by the husband, rather it
supports the case of the respondent wife that actually she was treated
with cruelty and torture by the appellant. Merely filing of criminal
cases by the respondent wife cannot be treated to be cruel behavior on
her part, unless the allegations made by her are proved to be false,
which is not the case till date, as the trial in the criminal cases are still
pending. Indeed the compromises by her in order to secure bail for the
appellant in the criminal cases, clearly indicate the willingness of the
respondent wife to resume the respectable conjugal life with the
appellant. None filing of any case for restitution of the conjugal rights
by the respondent wife, cannot mean that she is also interested in
living separate from her husband, rather the facts of this case show
that she has been compelled by the husband himself to leave the
matrimonial house. As regards contention of the appellant that the
marriage between him and the respondent has irretrievably broken
down, we still hope that good sense shall prevail over the appellant,
keeping in view the fact that he has two children out of this wedlock,
and he shall not allow their future to be compromised due to
differences between him and his wife. At the place of taking the
extreme step of annulling the marriage between them, we would prefer
to give more time to the appellant to ponder over future of his children
and to reunite his family for a blissful living together. We are also
conscious of the fact that irretrievable breakdown of marriage is still
not a ground for dissolution of marriage under
Section 13
of the Hindu
Marriage Act, even though way back in the year 1985, the Apex Court
in
Jorden Diengdeh Vs. S.S. Chopra
, reported in (1985) 3 SCC 62,
expressed its views as follows:-

"7. It is thus seen that the law relating to judicial
separation, divorce and nullity of marriage is far, far from
uniform. Surely the time has now come for a complete
reform of the law of marriage and make a uniform law
applicable to all people irrespective of religion or caste. It
appears to be necessary to introduce irretrievable
breakdown of marriage and mutual consent as grounds of
divorce in all cases. The case before us is an illustration of a
case where the parties are bound together by a marital tie
which is better untied. There is no point or purpose to be
served by the continuance of a marriage which has so

F.A. No. 47 of 2019

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completely and signally broken down. We suggest that the
time has come for the intervention of the legislature in these
matters to provide for a uniform code of marriage and
divorce and to provide by law for a way out of the unhappy
situations in which couples like the present have found
themselves in. We direct that a copy of this order may be
forwarded to the Ministry of Law and Justice for such action
as they may deem fit to take. In the mean while, let notice go
to the respondents."

19. From pleading of the parties and the evidence on record,
it appears that the husband wants to get rid of his wife as it is evident
from Exhibit-A, i.e., petition for mutual divorce which has been sent
to the wife after signing by the husband. Exhibit-B, letter dated
30.07.2010 which has been sent to the father-in-law by the husband
also suggests that he wants to get rid of his wife by hook and crook.
Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950)] 2 All ER 398;
403] observed as under:

"If the door of cruelty were opened too wide, we should
soon find ourselves granting divorce for incompatibility of
temperament. This is an easy path to tread, especially in
undefended cases. The temptation must be resisted lest we
slip into a state of affairs where the institution of marriage
itself is imperiled."

20. Be that as it may, the allegation of cruelty as alleged by
the husband has not been proved by placing any cogent evidence on
record and as such this ground has to fail and accordingly this point
has been decided in favour of the respondent-wife and against the
appellant-husband, which we hereby, affirm.

21. So far as point of desertion is concerned, it is admitted
position between the parties that they are living separately since
12.07.2014. The argument of the appellant-husband is that living
separately itself is sufficient in the eyes of law for granting divorce,
which is not acceptable.
Section 13(1)
(i-b) of the
Hindu Marriage Act
,
is quoted hereinunder:-

"(ib) has deserted the petitioner for a continuous period of
not less than two years immediately preceding the
presentation of the petition; or
*** *** ***

F.A. No. 47 of 2019

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Explanation. --In this sub-section, the expression
"desertion" means the desertion of the petitioner by the
other party to the marriage without reasonable cause and
without the consent or against the wish of such party, and
includes the wilful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.

22. From perusal of the above section, it is evident that
command of law is clear that desertion has to be voluntary. In the
present case, the wife has been driven out of her matrimonial home
and she is still willing to live in her matrimonial home as it is evident
from the fact that she has participated in the marriage of younger
brother of her husband on 07.05.2017 at village of her husband and
the compromises by her in the criminal cases in order to secure bail
for the appellant. Further the entire sequence of fact suggests that
husband is desirous to get rid of his wife and on so many occasions, he
had to take her back only after compromise and on the dictum of
panchayati.

23. It is also settled principle of law that nobody can take
benefit of his own fault. If the contention of the appellant-husband is
accepted then the very purpose of the law will be defeated. Any
husband desirous to get rid of his wife may get desired result by
driving out his wife from matrimonial home by force or creating a
situation and thereafter taking plea of desertion for more than two
years. The law is clear that if one of the parties to the matrimonial
home, voluntary and without any plausible explanation has left the
matrimonial home giving no option to the other party, then it amounts
to desertion. Desertion is a willful and voluntary act by the party to
leave something without any rational reason. In the present case,
husband is at fault and this is the reason for separate living of both the
parties.

24. In view of the finding recorded by us, the appellant-
husband is not entitled for decree of divorce on the ground of
desertion for more than two years.

25. As both the points have been decided against the
appellant-husband, the appeal fails and accordingly it is dismissed.
The Judgment dated 05.10.2018 and Decree of dismissal dated

F.A. No. 47 of 2019

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28.11.2018 passed in Original Suit No.174 of 2016 by Principal Judge
Family Court, Giridih, are, hereby, affirmed.

26. Office is directed to prepare the decree accordingly.

27. In the facts of the present case and considering the
conduct of the parties it is held that wife is entitled for cost of
litigation which is quantified to Rs.20,000/- (Twenty Thousand),
which must be paid within two months from the date of the decree.

28. With above observations and directions, the present
appeal is, hereby, dismissed.

(Rajesh Kumar, J)

H.C. Mishra, J.:-

(H.C. Mishra, J.)

Jharkhand High Court at Ranchi
The 08 day of September, 2020
Shahid/NAFR/