Court: JHARKHAND HIGH COURT
Bench: JUSTICE Aparesh Kumar Singh, J. & B.B. Mangalmurti
Ajay Narayan Das Vs. Asha Devi On 2 February 2018
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Mental Cruelty — Implicating family of husband in criminal case knowingly amounts to cruelty — With a view to put pressure upon appellant-husband, respondent-wife started demanding transfer of his share of land in her favour or Rs. 6 lacs in lien thereof — Respondent was not in a mood to reside in village area — With a view to implicate family members they were made accused in criminal case when brother of respondent was murdered by extremist outfit — Respondent also filed criminal case under Section 498A, IPC and Sections 3, 4, DP Act against appellant and his family members — Appellant remained under judicial custody for 4 months — Court below erred in concluding that appellant could not establish ground of cruelty — Appellant deserves to get decree of divorce.
JUDGEMENT
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 20.2.2008.
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 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 fulfil 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 lakh from her husband. The husband could not fulfil 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 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 lakh 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 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 lakh 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 Sections 3/4 of the Dowry Prohibition Act against the 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, behaviour 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 29.4.2003 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 lakh 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 inquiry the same was found true which has been marked as Exts. 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 Sections 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 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 v. D.A. Deepa reported in I (2013) DMC 458 (SC)=II (2013) SLT 338=(2013) 5 SCC 226 and K. Srinivas v. K. Sunita reported in X (2014) SLT 126=(2014) 16 SCC 34 Paragraph-6 is quoted herein below:
“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 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 withdraw matrimonial 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 Sections 3/4 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 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/323/324/504 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 v. 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 v. D.A.Deepa (supra) also deals with mental cruelty. It has dealt with several other judgments 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 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.
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for consultation or advice by visiting Contact Us
Leave A Comment