Appeal from the Original Decree No.147 OF 1998
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Against the judgment and decree dated 24.1.1998,
passed by Smt. Rekha Kumari, Principal Judge, Family
Court, Patna in Matrimonial Case No. 166 of 1998.
———–
BINOD KUMAR–SON OF BASUDEO PRASAD, RESIDENT OF –
MOHALLA STATE BANK COLONY DANAPUR, QR. NO. 6 P.S.
DANAPUR DISTRICT PATNA
——————-(Appellant)
Versus
SMT.MADHAVI KUMARI-WIFE OF BINOD KUMAR AND
DAUGHTER OF JOTISH PRASAD GUPTA, RESIDENT OF
VILLAGE SAGUNA P.S. DANAPUR DISTYRICT PATNA
—————–(Respondent)
——-
FOR THE APPELLANT: MR.HARENDRA PD.SINGH,ADVOCATE
MR. SHASHI KANT SINGH,ADVOCATE
FOR THE RESPONDENTS : MR. N.A. SHAMSI, ADVOCATE
MR. S. EHTESHAMUDDIN,ADVOCATE
MR. ARJUN PRASAD, ADVOCATE.
PRESENT
THE HON’BLE ACTING CHIEF JUSTICE
THE HON’BLE JUSTICE DR. RAVI RANJAN
——-
Dr. Ranjan, J Appellant-husband being aggrieved by the judgement and decree
dated 24.1.1998, passed by Smt. Rekha Kumari, Principal Judge, Family
Court, Patna in Matrimonial Case No. 166 of 1996 whereby his petition
under section 13 of the Hindu Marriage Act ,1955 has been dismissed , has
preferred this appeal.
The appellant-husband filed Matrimonial Case No. 166 of 1996
under section 13 of the Hindu Marriage Act, 1955 for dissolution of his
marriage with the sole respondent by grant of a decree of divorce. According
to him his marriage with the respondent was solemnized on 18.5.1989 at
Saguna P.S. Danapur, District Patna according to Hindu Rites and Customs.
According to him after two days of marriage the respondent returned to her
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father’s house after taking back all her belongings ,never to come back to her
matrimonial house. Further case of the petitioner- appellant is that he went
to his Sasural for ―Rukhsati‖ in 1989 but the respondent refused to come
and he was assaulted and threatened by her father. Subsequently the
respondent filed a Maintenance Case bearing No. 171(M)1990 against the
appellant husband which was disposed of on 25.6.1995 by the concerned
Court allowing monthly maintenance of Rs. 500/- per month to be paid by
the husband to the wife. Thereafter appellant -husband filed Matrimonial
Case No. 90 of 1990/18/1992 for grant of a decree of divorce. However, the
same was dismissed by judgment dated 17.6.1992 by Shri N.C. Lala,
Principal Judge, Family Court, Patna. Further case of the husband is that the
respondent wife, being a daughter of Retired Assistant Chief Accounts
Officer, Central Excise, Patna is very much proud of her parents and other
relatives. Her behaviour was only to torture and disturb the mental peace of
the petitioner-appellant and thus she has deserted him . As a result of which
he and his family member had to suffer social humiliation at the hands of
the respondent and his social status has been lost. Thus, the husband had to
take recourse to filing of the instant case.
The respondent wife filed written statement refuting all the
allegations made by the husband and has stated that the petitioner-appellant
had earlier filed Matrimonial Case No. 90 of 1990 on the ground of adultery
and cruelty which was dismissed on contest hence according to her, the
present case was barred by the Principle of res judicata. The respondent –
wife admitted the marriage but has denied to have returned to her ―Naihar‖
with all her assets after two days only. She, in fact, stayed at her
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matrimonial house for about three weeks and thereafter came to her father’s
place. Thereafter the petitioner-appellant never came to take her back in
spite of repeated persuations by the parents and other relatives of the
respondent as a result of which finding no other option she had to file
Maintenance Case No. 171(M) 1990 which was allowed. Thus, according to
respondent in fact it the petitioner-appellant who has deserted the
respondent.
On consideration of the pleading of parties the trial court framed
following issues:
1. Whether the case as framed maintainable?
2. Whether the petitioner has valid cause of action for the case?
3. Whether the respondent treated the petitioner with cruelty?
4. Whether the respondent has deserted the petitioner for a
continuous period of not less than two years immediately
preceding the presentation of the petition?
5. Whether the petitioner is entitled to get a decree of divorce, as
prayed for.
6. Whether the respondent is entitled to get permanent alimony?
7. To what other relief or relies the petitioner is entitled?
It is apparent from the aforementioned facts that the petitioner has
filed his case chiefly on two grounds, cruelty and desertion. The petitioner-
appellant has examined altogether six witnesses. P.W.4 Binod Kumar is the
petitioner himself, P.W.1 Basudeo Pd. is the father of the petitioner whereas
petitioner no.2 is Rabindra Kumar Gupta, P.W.5 is Atul Kumar and P.W.6 is
Subodh Kumar.
Opposite Party- respondent has also examined althgether five
witnesses among whom O.P.W.2 Madhavi Devi is the respondent herself
and O.P.W. 1 is Jyotish Prasad Gupta is her father. Other witnesses are
O.P.W.3 Lalmoni Singh, O.P.W. 5 Bankey Lal and O.P.W.5 Shyam Babu
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Pal .
The trial court, while dealing with the point of desertion as raised
by the husband, on analysis of the pleadings and evidence led on behalf of
the parties has come to the conclusion that the evidence adduced on behalf
of the petitioner is contradictory. At one place it is stated that they made
attempt was made for Rukhsati or Bidayee of the girl and the wife and her
parents were not ready for that whereas it also comesout that the father of the
respondent wanted to send his daughter forcibly in the house of the
petitioner-appellant under threat and coercion . Thus, the trial court
discarded the evidence of the petitioner-appellant and held that there is no
question of desertion on the part of the respondent.
On point of cruelty also the trial court has held that there is
nothing to show that the respondent has treated the petitioner with cruelty.
As a result, the trial court has held that the Matrimonial Case fails on both
the grounds as the respondent neither treated the petitioner with cruelty nor
has she deserted him and thus finally dismissed the suit on contest with
costs.
Heard Mr. Harendra Pd. Singh Advocate for the appellant and Mr.
N.A. Shamsi Advocate for the respondent.
Learned counsel for the appellant submits that the findings of the
trial court on both issues, desertion as well as cruelty, are erroneous as it has
not appreciated the evidence adduced on behalf of the petitioner-appellant in
the right perspective. According to him the appellant himself while being
examined as P.W.4 and other witnesses examined on his behalf have fully
supported his case. P.W. 4 has categorically stated that after solemanisation
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of marriage on 18.5.1989, the respondent went back to her parent’s house on
the third day of marriage itself. He made efforts for Rukhsati but the same
proved to be futile exercise. His further evidence is that he was receiving
cruel treatment from the respondent who never accepted him as husband.
According to him for the reasons aforesaid the matrimonial relationship
could never be established between them resulting in his mental, physical
and social suffering as the respondent and her family members have insulted,
abused and threatened him. He also states that a Sanha was lodged in this
regard on 2.1.1994 in Danapur Police Station which has been brought on
record as Ext.1. He has stated that since there is danger on his life in living
with the respondent, therefore, he has filed the present case. Other witnesses
have also tried to support the aforesaid evidence led by P.W.4.
Against the above, the respondent has also examined five
witnesses. O.P.W.2 the respondent herself in her evidence has stated that in
fact the husband had never come to her Naihar for Rukhsati or Bidayee and
she had denied the other allegations and have shown her readiness to live
with her husband.
Learned counsel for the appellant contends that it is apparent from
the evidence led on behalf of petitioner- appellant that whenever there was
attempt of Rukhsati or Bidayee they were insulted and even gundas were
sent by the respondent threatening to keep the girl failing which they would
have to face with dire consequences. Learned counsel for the respondent, in
reply asserts that there is nothing in the pleading as well as evidence of the
appellant which supports his allegation of desertion as well as cruelty. He
points out that since nobody took any step for Rukhsati or Bidayee from the
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appellant’s side, the respondent had to resort for filing Maintenance Case no.
171(M) 1990 for grant of maintenance which was allowed by the court
concerned. Thereafter the petitioner-appellant filed Matrimonial case No. 90
of 1990 on the ground of adultery as well as cruelty which was also
dismissed on 17.6.1992 itself. Thus the ground of cruelty ( which was also
taken in the earlier Matrimonial case no. 90 of 1990 ) has already failed
and since thereafter admittedly they have not lived together, there is no
question of cruelty inflicted by the respondent upon the appellant at all. His
further contention is that the appellant miserably failed to prove aminus
deserendi on behalf of the respondent as she had filed maintenance case and
maintenance was allowed. She has always stated that she is willing to live in
her matrimonial house and even today she is willing to live with him. From
the earlier judgement dismissing matrimonial case no. 90 of 1990 and also
from the pleading and the evidence led on behalf of the appellant it is
apparent that the appellant could not prove that the respondent had
abandoned him without reasonable cause and without his consent with the
intention to bring cohabitation permanently to an end during the entire
statutory period ie. two years prior to filing of the petition. At one hand
appellant’s stand is that the parents of the girl were not allowing her to go
back to matrimonial house and on the other hand his charge is that the
parents of the girl were sending antisocial elements to presurrrise the
petitioner-appellant to keep his wife along with him. That apart the
petitioner could not establish also that he had real intention to resume
cohabitation with his spouse. Coming to the point of cruelty, learned
counsel for the respondent contends that mere expression in the pleading on
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the point of cruelty without any specific allegation and without proving it
by leading evidence cannot be accepted by any court. He further contends
that the allegation that in June 1989 father of respondent abused and
threatened him instead of sending the girl cannot be believed for the
reasons that these facts were not alleged in the earlier matrimonial case
no. 90 of 1990 and secondly this allegation itself is contrary in nature for
the reason that if the husband was ready to keep his wife then there could be
no reason for the father of the girl to threaten him by sending antisocial
element for doing the same thing. That apart there is also no eye witness or
any material in corroboration of stand of petitioner-appellant that the
respondent ever misbehaved with him either in private or in public specially
so because the case of appellant himself is that the wife remained only for
two days in her matrimonial house.
I find force in the submissions made on behalf of the respondent
and hold that the petitioner-appellant failed to prove the allegation of
desertion as well as cruelty by his spouse.
Mr. Singh, learned counsel appearing on behalf of the appellant
lastly contends that since the case for divorce was dismissed as back as on
24th day of January 1998 and the husband and wife are living separately,
there is no escape from the conclusion that the marriage has irretrievably
broken and hence this is a fit case wherein the marriage be dissolved by
grant of a decree of divorce. According to him though section 13 of the Act
does not include irretrievable break down of marriage as ground to sever the
marital tie, the Supreme Court in its various decisions considering the
cumulative effect of bundle of circumstances has made a distinct shift from
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the conservative interpretation and adopted a liberal approach and has
granted a decree of divorce on the finding of irretrievable break down of
marriage. In support of his contentions learned counsel has relied upon
certain authorities which as follows:
Praveen Mehta Vs. Inderjit Mehta, reported in 2003 (1) BLJ 633;
Samar Ghosh Vs. Jaya Ghosh, reported in (2007)4 SCC 511; Rishikesh
Sharma V Suraj Sharma , reported in 2007(2) SCC 263; Satish Sitole Vs
Smt. Ganga, reported in 2008 (5) Supreme 198.
Learned counsel for the respondent submits in reply that the
appellant wants to take advantage of the systemic delay, by counting those
ten years period which has been taken in disposal of the present appeal, for
raising a ground of irretrievable break down of marriage. The matrimonial
case was dismissed as back as in the year 1998 but the husband made no
attempt after dismissal of the matrimonial case to set the home in order.
Had this appeal been heard in the year 1998 itself, this point of irretrievably
break down of marriage would not have been available to the appellant.
I find force in the submission of the learned counsel appearing on
behalf of the respondent. Time period taken due to systemic delay in
disposal of this appeal cannot be allowed to become a tool in the hands of
the appellant. That apart it is not a case in which the wife had walked away
from the matrimonial life. The wife is still fighting the legal battle and is
willing to live at her matrimonial home. It is pertinent to point out here that
if both the parties want to walk out of he matrimonial tie then the course of
divorce by mutual consent under section 13 B of the Act is always available
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to them.
The Apex Court in the aforesaid decisions had granted decree of
divorce on the point of irretrievable break down of marriage after reaching
to conclusion in the aforesaid cases that there has been long years of
separation between the parties and all the emotions between the parties had
died and one of the spouse has simply walked away from the matrimonial
life. Before granting a decree of divorce on the ground of break down theory
one has to come to the conclusion that the matrimonial bond is beyond
repair.
Section 13 of the Hindu Marriage Act 1955 as it stands today does
not include irretrievable breakdown of marriage as a ground to sever the
marital tie. It is well known that in Hindu law marriage is considered
nnecessarily the basis of Social Organization and the foundation of
important legal rights and obligation. Marriage is treated as Samskara or a
Sacrament, therefore, while dealing with the case of dissolution of marriage,
that too on the break down theory which is not a ground for dissolution of
marriage described Under Section 13 of Hindu Marriage Act, one has to be
very careful. In the present case the appellant has failed twice in attempt of
dissolution of marriage before the trial court. Firstly in the earlier
matrimonial case no. 90 of 1990 on the ground of cruelty and adultery and
secondly again in the present case on the ground of desertion and cruelty, I
have already upheld the judgement and decree of the trial court. Thus, the
point of desertion and cruelty raised by the respondent has already failed. In
pursuance of the order of this Court the appellant and his wife were present
before this Court and the wife was willing to go to her matrimonial house
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and live together with the husband. However, the husband was not willing
to keep her.
Thus, I am of the opinion, it is not a fit case in which marriage
could be ordered to be dissolved under the breakdown theory.
In the result this appeal fails and is dismissed accordingly.
However, there will be no order as to costs.
(Dr. Ravi Ranjan,J)
Chandramauli Kr. Prasad, ACJ.
(Chandramauli Kr. Prasad,ACJ)
Patna High Court
The Feb. 2009
Rahman/ NAFR