Jharkhand High Court

Ajay Narayan Das vs Asha Devi on 2 February, 2018

Equivalent citations: 2018 (2) AJR 445, (2018) 184 ALLINDCAS 709 (JHA), (2018) 3 HINDULR 432, (2018) 2 JCR 549 (JHA), (2018) 3 DMC 148

Bench:
Aparesh Kumar Singh
,
B.B.Mangalmurti

F.A. No. 74 of 2008

[ Against judgment dated 20.02.2008 passed in Matrimonial Title Suit No. 18 of 2001 by
Sri Mahesh Prasad Sinha, Principal Judge, Family Court, Hazaribagh ]
--------

Ajay Narayan Das, son of Sri Upendra Narayan Das,
resident of Village & P.O. - Morangi, P.S. Muffasil, District Hazaribagh,
Jharkhand

... ... Appellant

Versus

Asha Devi, wife of Ajay Narayan Das,
resident of Village - Tikulia, P.S. Simariya, P.O. Simariya, District - Chatra,
Jharkhand.

... ... Respondent

For the Appellant : Mr. Mahesh Tewari, Advocate
For the Respondent : Mr. V.Shivnath, Senior Advocate
Mr. Niraj Kishore, Advocate

PRESENT
CORAM : HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE B.B.MANGALMURTI

CAV on 11th October, 2017 Pronounced on: 02 .02. 2018

B.B.Mangalmurti, J. This appeal is filed against judgment passed in Matrimonial

Title Suit No. 18 of 2001 by Principal Judge, Family Court, Hazaribagh

dismissing the suit on 20.02.2008.

2. The case of the appellant is that the marriage of appellant Ajay

Narayan Das with respondent Asha Devi was solemnized in the month of

June, 1995 after observing the Hindu rites and customs. Thereafter both

started their conjugal life in the house of the appellant at Village-

Morangi, P.S. Muffasil, district - Hazaribagh. After few months of

marriage, the respondent did not want to live in the village area and

without the consent of the husband left the village in the month of

October, 1995 and stayed in the house of her father at village - Tikuliya

2 F.A. No. 74 of 2008

for about six months. During this period, the appellant visited village

Tikuliya where the respondent was residing but she refused to return

with her husband as also expressed her desire that if her husband will live

in the town area leaving the house at village-Morangi then she will

accompany him. Since the husband was unemployed, therefore, he could

not fulfill her demand. The further case is that the respondent came back

in the month of May, 1996 at village-Morangi but was compelling her

husband to leave his parents' house and thereafter she started demanding

Rs. 6 lakhs from her husband. The husband could not fulfill the demand

and then respondent permanently left the house of her husband in the

month of July, 1998. Therefore, there was no cohabitation between the

husband and wife since July, 1998 as the respondent deserted the

appellant causing mental agony. Appellant visited several times to bring

back the respondent but she refused to come back and also imposed

allegation of impotency against her husband which also caused mental

agony to the appellant. The respondent implicated the entire family

members of her husband in a false criminal case. The hostile attitude

towards amicable settlement and her gesture was so violent that that the

Sessions Judge also observed while hearing the anticipatory bail

application being A.B.P. No.18 of 2008 that she is not ready to live at her

in-laws place rather she had herself gone to her parents and for

compromise sake she demanded registration of entire lands of her

husband's share or consideration money of Rs.6,00,000/-. It was also

observed that complainant is present in dock and identified by Sri Anil

Kumar Sinha, Advocate and when asked she showed absolute hostile

3 F.A. No. 74 of 2008

attitude towards amicable settlement and rather from her gesture she

herself appears to be with violent mood.

3. After appearance of respondent in the suit, a written statement was

filed and after taking the legal technical pleas she denied the allegations of

not wanting to live in the village as well as demand of Rs. 6 lakhs and

leaving the appellant's house on her own sweet will rather she was

compelled to leave due to humiliation, torture and neglect shown towards

her. She denied that she ever made any allegation on the character or

impotency against the appellant. It was also stated that observation made

by the Sessions Judge in a bail application is not binding upon the

respondent nor could be taken into account in adjudicating this case.

After examining five (05) witnesses on behalf of appellant, 17 exhibits

were also brought on record from the side of appellant whereas

respondent also examined five (05) witnesses and brought on record

exhibits A to L.

4. After appreciating the oral and documentary evidences brought on

record from both the sides, the court below came to the conclusion that

there is no breakdown of the marriage rather, respondent came in her

sasural in the year 2003 on compromise and after acquittal of her

husband. She came to her sasural after filing of the suit and she had

clearly stated in her statement that she is still willing to reside with her

husband so no relief can be granted on the ground that the marriage had

broken down irretrievably. Since the petitioner has not been able to

establish the fact that the respondent treated him with cruelty and he also

failed to establish that respondent deserted him, so no other ground is

4 F.A. No. 74 of 2008

available in the plaint, therefore, petitioner is not entitled for a decree of

divorce.

5. Assailing the judgment learned counsel appearing on behalf of the

appellant submitted that the Principal Judge, Family Court, without

appreciating the evidences brought on record, dismissed the suit for

dissolution of marriage which was filed on the ground of cruelty and

desertion. He further submitted that the court below has completely

ignored that the respondent without any valid reason abandoned her

matrimonial house in the month of July, 1998 and in spite of repeated

requests by the appellant, she never returned to her matrimonial house.

The court below also erred that the respondent was putting pressure on

the appellant to transfer his entire share of land in her favour as well as

she was demanding Rs. 6 lakhs as she was not in the mood to reside in a

village area. She has expressed her desire to live in the town area. Counsel

for the appellant further submitted that the respondent instituted Simaria

P.S. Case No.47 of 2001 implicating the father and brothers of the

appellant although the brother of respondent was actually murdered by

the extremists. These acts constitute cruelty committed upon the

appellant. He also submitted that court below overlooked the situation

that there was breakdown of marriage as the respondent was not willing

to reside with the husband and she has caused physical and mental

cruelty.

Elaborating his argument, counsel for the appellant submitted that

the respondent filed a criminal case under
Section 498A
of the Indian

Penal Code and under Section ¾ of the
Dowry Prohibition Act
against the

5 F.A. No. 74 of 2008

appellant, his parents and elder brother and two younger brothers being

Tandwa P.S. Case No.29 of 2000. When the anticipatory bail applications

on behalf of lady members of the family were filed the nature, behavior

and character of the respondent were observed by the Sessions Judge in

A.B.P. No. 18 of 2008. In that case the appellant remained in judicial

custody for about four months and thereafter he was released on bail,

although the court of S.D.J.M., Chatra by his judgment dated 29.04.2003

acquitted them from the charges which has been brought on record as

Ext.-10. He further submitted that the brother of respondent was

murdered by the extremists but taking advantage of the situation the

father and brothers of the appellants were made accused in Simariya P.S.

Case No. 47 of 2001 (Ext.-1) but after investigation the final form was

submitted against the father and brother of the appellant with the finding

that the murder was caused by the extremists (Ext.-4). The respondent

had threatened that she will commit suicide if Rs. 6 lakhs is not paid to

her in lieu of the share of agricultural land of the appellant for which a

sanha was submitted in Tandwa police station and on enquiry the same

was found true which has been marked as Ext. 6 and 7. The father of the

respondent Kamakhya Prasad Singh filed an application before Sub-

Divisional Police Officer, Chatra for causing torture for divorce by the

appellant upon the respondent. This complaint was also enquired into

and the same was also found to be false which has also been brought on

record as Ext.-11. The respondent went further in filing a complaint case

No. 333 of 2005 before the court of C.J.M., Chatra under Section 498 A,

323, 324 and 504
I.P.C
. (Ext.-15) where the appellant and his father was

convicted and two years' imprisonment was imposed. Subsequently on

6 F.A. No. 74 of 2008

Appeal the said conviction was set aside by the court of Sessions Judge,

Chatra. The respondent-wife without the consent of the appellant got her

uterus removed at Vandana Nursing Home, Hazaribagh in the year 2013.

Counsel for the appellant submitted that all these incidents clearly

indicate towards torture meted out to the appellant and every efforts were

made by the respondent-wife to cause mental and physical torture to the

appellant and/or appellant's family. He also submitted that the Hon'ble

Supreme Court has held that even filing of one false case could be treated

as cruelty.
He relied on the decisions rendered in the case of
K.Srinivas

Rao Vs. D.A.Deepa
reported in (
2013) 5 SCC 226 and K.Srinivas Vs.

K.Sunita
reported in (2014) 16 SCC 34 Paragraph-6 is quoted

hereinbelow:-

"6. Another argument which has been articulated on
behalf of the learned counsel for the Respondent is that the filing of
the criminal complaint has not been pleaded in the petition itself. As
we see it, the criminal complaint was filed by the wife after filing of
the husband's divorce petition, and being subsequent events could
have been looked into by the Court. In any event, both the parties
were fully aware of this facet of cruelty which was allegedly suffered
by the husband. When evidence was led, as also when arguments
were addressed, objection had not been raised on behalf of the
Respondent-Wife that this aspect of cruelty was beyond the
pleadings."

6. The Hon'ble Supreme Court has held that the conduct of the wife in

making unfounded, indecent and defamatory allegations against the

family members and her all attempts to ensure that the other sides were

put in jail and he was removed from his job certainly constituted cruelty.

Counsel for the petitioner also submitted that the court below has erred in

holding that the respondent had after compromise came to the house of

appellant and stayed till the year 2003. The father of respondent-

Kamakhya Prasad Singh has deposed in Paragraph 45 of cross-

examination that his daughter Asha Devi is staying with him since the

7 F.A. No. 74 of 2008

year 2000 even the respondent has also stated in Paragraph 23 of her

cross-examination that she remained in her Sasural from 1997 till the year

2000. If the statement of respondent and her father is taken then the court

below has come to a wrong conclusion that the respondent-wife had

stayed in the house of appellant till the year 2003. The court below has

also erred in holding that the judgment passed in Matrimonial Suit No.18

of 2001 was passed on the basis of compromise but in the evidence of

father of respondent Kamakhya Prasad Singh it has not been stated about

the compromise. The respondent in her deposition have stated about the

Panchayti between the year 2000-03 but no fruitful result could be

achieved. The respondent has admitted that she is working as Para

teacher at her parental village. Therefore, the court below has misdirected

itself in coming to a conclusion which is not based on the evidences

brought on record.

7. Learned Senior counsel appearing for the respondent submitted

that the marriages between the parties were solemnized in June, 1995. The

respondent has returned to her matrimonial house in 2003 during the

pendency of matrimonial suit, so it is not a case of desertion. He

submitted that actually the respondent was compelled to leave

matrimonial home. He further submitted that FIR was lodged by father of

respondent that does not constitute mental cruelty. He also submitted that

remarks passed by Sessions Judge while considering the anticipatory bail

application could be termed as mere observation of that court. He further

submitted that it was not the pleading that entire family member were

implicated in the murder case. The respondent-wife acted upon as per the

terms of compromise but the respondent did not withdrew matrimonial

8 F.A. No. 74 of 2008

suit and violated the condition of compromise. As per compromise she

returned to matrimonial house also. Therefore, the court below has rightly

held that the marriage has not broken down irretrievably and dismissed

the suit. The appellant could not establish that he was treated by

respondent with cruelty since after compromise she resided with the

husband in the year 2003, so living separately for a long time is also not

established. In this situation, learned Senior counsel prayed for dismissal

of this appeal.

8. Considering the above submission of the parties and on perusal of

lower court records, it appears that the appellant-husband has filed suit

for a decree of divorce under
Section 13
of the Hindu Marriage Act, 1955

on the ground of cruelty as well as desertion with further prayer for cost

of suit or any other relief. Counsel for the appellant tried to establish that

conduct of the wife towards the family members of the appellant was

such which will fall under the category of cruelty inflicted upon the

appellant. With a view to put pressure upon the appellant, the respondent

started demanding transfer of his share of land in her favour or

Rs.6,00,000/- in lieu thereof. The respondent was not in a mood to reside

in village area. With a view to implicate the family members they were

made accused in Simaria P.S. Case No.47 of 2001 which was lodged when

the brother of respondent was murdered by the extremist outfit. The

respondent has also filed a criminal case under
Section 498A
of the Indian

Penal Code and
Section 3
/
of Dowry Prohibition Act against the

appellant and his family members. In that case the appellant remained in

judicial custody for about four months. The court of S.D.J.M., Chatra

acquitted the appellant in this case so the conduct of wife could be

9 F.A. No. 74 of 2008

inferred that these actions of filing false criminal cases are lodged not only

with a view to put pressure upon the appellant but the same also caused

mental torture to the appellant and their family members. Several exhibits

have been brought on record by the appellant. From the Ext.15, it would

appear that the respondent went on filing Complaint Case bearing No.333

of 2005 before the court of C.J.M., Chatra under
Sections

498A
/
/
/
of the Indian Penal Code in which the appellant and

his father was convicted but the conviction was set aside in appeal. It is

also brought to our notice that the brother of respondent was murdered

but the family members of appellant were also implicated although the

Police after investigation finding the allegation false submitted the final

form. These actions of respondent are such which might have inflicted

mental torture upon the appellant and their family members.
The

judgment
K.Srinivas Vs. K.Sunita
(supra) has amply covered the facts of

present case. The Hon'ble Supreme Court came to the finding that the

respondent-wife had filed a criminal complaint, and even one such

complaint is sufficient to constitute matrimonial cruelty. In this case also

the appellant and their family members were made accused in a murder

case although their involvement were not found and final form was

submitted. Thus, the respondent-wife and her Father knowingly and

intentionally filed criminal cases that amounts to cruelty under Section

13(1)(i-a) of the
Hindu Marriage Act
.

The proposition held in
K.Srinivas

Rao Vs. D.A.Deepa
(supra) also deals with mental cruelty. It has dealt

with several other judgment of the Hon'ble Apex Court and came to the

finding that the effects of the conduct of the respondent-wife in filing

unfounded indecent and defamatory allegations and the manner and

10 F.A. No. 74 of 2008

conduct would constitute mental cruelty to the appellant-husband.

Therefore basing on the proposition of above two judgments of the

Hon'ble Apex Court, we come to the conclusion that the court below has

erred in holding that the appellant could not able to establish the ground

of cruelty. The conduct of respondent-wife and her family members could

be considered within the category of cruelty.

9. In these circumstances, the appellant deserves to get a decree of

divorce. Accordingly, we allow the appeal holding that the appellant

entitled for a decree of divorce. The marriage solemnized between the

Appellant and Respondent stand dissolved. Decree accordingly.

(Aparesh Kumar Singh, J.) (B.B. Mangalmurti, J.)

High Court of Jharkhand at Ranchi
Dated 2nd February, 2018
Birendra/AFR