Raghunath Ram v. Sahodra Devi — 1995 DIGILAW 714 (PAT)

Judgment R.N.Sahay, J. 1. The appellant, Raghunath Ram, is the husband of the respondent. He instituted a suit for divorce on the ground of adultery but could not succeed. The suit was dismissed and hence he has preferred this appeal for setting aside the judgment of the 3rd Addl. Judicial Commissioner, Ranchi. 2. I have heard Sri Laik in support of the appeal at length. The wife despite notice has not appeared to contest the appeal. Sri Laik stated that the respondent is not interested in contesting the appeal and that she has left the village and that is why notice issued by this Court could not be served on her, although notice was directed to be served at the concerned police station. 3. The facts of the case are that the parties were married on 28.4.1977 according to Hindu rites. The appellant is serving as spy in the Indian Army. After marriage the respondent lived with the appellant for same time. A female child named Sushma was born in 1978. It is .alleged that on 5.10.79 the respondent left her husbands house in village Dahugutu without his consent and went to her fathers place at village Balahathi with bag and baggages. Her fathers village is contiguous to the appellants village. On 22.10.1980, one year after alleged desertion by the wife, the appellant went to his .sasural to bring her back, but she refused to come with the appellant stating that she would prefer to live with her paramour with whom she was having an affair prior to her marriage with the appellant. The appellant also alleged cruelty against the wife in the shape of vulgar utterances. The allegations were denied by the wife in her written statement and her evidence. She denied that she had any illicit connection whatsoever with anybody from before her marriage. She was a devoted Hindu wife and out of the union two children were born. The first child was a female child and the next child was a male who was born in March, 1981. The wife refuted the allegation that the second child was born out of her adulterous relationship with her lover whose name has not been disclosed. She also denied the allegation that she had deserted the appellant. As a matter of fact, the appellant left her to her Naihar when she was in the family way for the second time. The wife refuted the allegation that the second child was born out of her adulterous relationship with her lover whose name has not been disclosed. She also denied the allegation that she had deserted the appellant. As a matter of fact, the appellant left her to her Naihar when she was in the family way for the second time. The appellant had also promised to send her Rs. 100.00 per month. It was this which enraged the brother and parent of the appellant and they managed to get the case filed on false allegation. The learned Addl. Judicial Commissioner has dealt with the rival contention in paragraphs 4 to 7 of the judgment which for convenience are reproduced below: Thus we find that the dissolution of marriage has been sought for on two grounds on that the respondent was leading an immoral life even after her marriage and secondly that she treated the petitioner with cruelty after the solemnization of marriage. Four PWs. have been examined on behalf of the petitioner out of whom P.W.I is the petitioner himself. It is admitted that the petitioner was married with the respondent in April, 1977. It is also admitted that the first female child was born to them out of this wedlock. Now what is controversial is birth of the second child. The evidence of the petitioner (P.W.I) is that the respondent finally withdrew from his society on 5.10.79 Now the male child as per case of the respondent was born on 21.3.81. The evidence of the respondent P.W.I is that her husband had come on leave in June 1980 when she had an occasion to conceive for the second time. The petitioner in support of his case, has filed record of his leave which has been marked Exts. l and 1/1 Ext.I has been filed to show that the petitioner was granted twenty days leave from 7.4.80 to 26.4.80. But apparently there appears overwriting in the month column even in the Photostate copy. It can be noticed from naked eye that the digit 4 of month has been forged. The evidence of the petitioner in para 10 on recall (wrongly enclosed with the evidence of the respondent) is that he had come home on leave in together and conceived. 5. The evidence of P.Ws. It can be noticed from naked eye that the digit 4 of month has been forged. The evidence of the petitioner in para 10 on recall (wrongly enclosed with the evidence of the respondent) is that he had come home on leave in together and conceived. 5. The evidence of P.Ws. 2,3 and 4 is that the respondent never returned to her Sasural after 5.10.79 P.W.2 has said in his cross-examination that the petitioner had told him so, P.W.4 is a friend of the younger brother of the petitioner. The evidence of the petitioner further is that the respondent used to torture him by stating that he was unable to provide her the same amount of pleasure and sexual satisfaction which her lover used to give to her. Needless to refer here to the strong denial of this allegation by the respondent, it is rather impossible to believe that a Hindu girl would speak in such a manner to her husband. According to the petitioner there is only a distance of two miles between the two villages Dahugutu and Belahathi. According to the respondent both the families were known to each other from before the solemnization of marriage. This being so, it is difficult to believe that the respondent had a lover from before. The family of the petitioner must have examined every nook and hole of the family of the respondent before the settlement of marriage. 6. The respondent has examined four witnesses out of whom D.W.I is the herself. They have all denied the allegation of the petitioner that the respondent did not get to her Sasural after 5.0.79. Their evidence is that when in June, 1980 the petitioner came on leave, he took the respondent to his home. It was on this occasion that she conceived. The evidence of the petitioner further in para 13 is that he had come on leave in October, 1980. Again I find overwriting and interpolation in the date column (vide Ext 1/1). So the whole record of leave is a forged document and cannot be relied upon. 7. Now the next allegation is that the respondent treated the petitioner with cruelty when they were living together. This has been vehemently denied by the respondent. In support of this fact the respondent has filed series of letters written by the petitioner to her Army head quarter (Exts. A to A/5). 7. Now the next allegation is that the respondent treated the petitioner with cruelty when they were living together. This has been vehemently denied by the respondent. In support of this fact the respondent has filed series of letters written by the petitioner to her Army head quarter (Exts. A to A/5). These letters appertain to the period from 1977 to 1980. This again fits in with the case of the respondent that she was having cordial relation with her husband till she became pregnent for the second time in June, 1980. The letter Ext. A/3 is dated 7.9.80 and Ext. A/4 is dated 10.8.90. This belies the very case of the petitioner that the respondent had no matrimonial relation with him ever since 5.10.79. These letters are testimony to the fact that the matrimonial tie existed between the two till August, 1980. It is the very case of the leave in October, 1980 his family members including his brother misguided him and ultimately succeeded in filing this case on false allegations. In view of the-love and affection shown through these letters, the case of the petitioner that respondent has controverted that the petitioner came to Belahathi on 20.10.80 to take her to her Sasural, In the circumstances, I have no reason to disbelieve her. 4. The learned Additional Judicial Commissioner having rejected the evidence adduced on behalf of the appellant that his wife was maintaining illicit relation with somebody, dismissed the application of the petitioner. The other ground of cruelty also was not established. 5. Mr. Laik has submitted that having regard to the evidence brought on record by the appellant the court below ought to have granted decree for divorce under Sec. 13 of the Hindu Marriage Act. Learned Counsel has taken me to the evidence in detail and contended that it was proved by clinching evidence that the wife was living at her fathers place from 1980 onwards and the second child was born there when the appellant had no access to the wife. In this connection he has referred to the evidence of the father of the respondent as also the evidence of the respondent. 6. The relevant evidence of the parties may now be considered. Several letters written by the appellant to his wife were exhibited on behalf of the respondent. These letters clearly go to show the appellant very much loved his wife. 6. The relevant evidence of the parties may now be considered. Several letters written by the appellant to his wife were exhibited on behalf of the respondent. These letters clearly go to show the appellant very much loved his wife. The last letter was written in 1980. There is no allegation either cruelty or illicit relationship with some other man. 7. The appellant in his evidence has stated that on 5.10.1979 respondent left with her clothings and ornaments. He visited her on 20.10.1980 to bring her back but she refused to come with the appellant admitting that she was having illicit connection with some boy. The appellant has also alleged cruelty in para 3 of his deposition. He has stated that he never met respondent after they separated. He has denied that the respondent left him in 1980 due to torture by her in-laws after the appellant left his village to join his duties. There are two witnesses, who have to some extent supported the case of the appellant that the respondent left her Sasural in 1979 after a quarrel with her mother-in-law. She never returned again. 8. The respondent says in her evidence that she was living in her Sasural and with her husband at Mathura till 1979. The appellant took her to village and while leaving to join his duties reached her at her Naihar, she has admitted that in 1979 she was living at her Naihar, A daughter was born on 14.6.1978. He has stated that she met her husband in 1980 when he came on leave. She does not say that she had any sexual intercourse with him in 1980. She denied that she deserted her Sasural in 1979 after quarrel with her mother-in-law. 9. Malar Mahto examined as D.W.2 denied the allegations made in the plaint D.W. 3 Dukhan Lohar has stated that appellant deserted his wife and since she is living at her Naihar. Chander Mahto, D.W. 4 is the father of respondent. He has denied the allegation against her daughter. This witness further stated that his daughter was pregnant in 1979 when she left her husbands house to live at her Naihar. He has further stated that in 1980 his daughter went to live with her husband. This, however, is not the case of the respondent. 10. He has denied the allegation against her daughter. This witness further stated that his daughter was pregnant in 1979 when she left her husbands house to live at her Naihar. He has further stated that in 1980 his daughter went to live with her husband. This, however, is not the case of the respondent. 10. Shri Laik has attempted to pursuade me to hold that the respondent gave birth of second child when the appellant has no access to his wife. In other words the second child was illegitimate one. In absence of convincing evidence this contention cannot be accepted. 11. However, the fact remains that the parties are separate for least 16 years and there is no likelihood now and they will live together again. Recently the Hon ble Supreme Court in Smt. Sneh Prabha V/s. Rabindra Kumar -- , the Supreme Court granted divorce to the husband on the ground "that the marriage of the parties has irretrievably broken down and there was no chance of husband and wife living together. "In the present case despite the best efforts notice could not be served on the respondent. The Supreme Court in Sneh Prabhas case (Supra) granted maintenance to the wife. In the instant case also respondent-wife must be given maintenance. The parties are therefore granted divorce decree, following Supreme Courts decision. 12. Considering the facts and circumstances of the case, the respondent is allowed maintenance at the rate of Rs. 400.00 p.m. till the appellant is in Army service. Liberty is given to the appellant to apply for modificalion of the amount of maintenance after he retires from service. The appellant may file an application either before this Court or before the Judge for this purpose. The Trial Judge shall dispose of the application in accordance with law. The respondent is also given liberty to apply for enhancement of the maintenance. She may also file application before the District Judge for this purpose and District Judge shall dispose of the said application in accordance with law. The trial judge shall give intimation of this order to the respondent. 13. The appeal is accordingly allowed and the decree of divorce is granted to the parties with immediate effect subject to maintenance as indicated above.