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2004 DIGILAW 1092 (JHR)

Devanti Devi v. Rupan Tanty

2004-11-30

HARI SHANKAR PRASAD, M.Y.EQBAL

body2004
ORDER 1. This appeal is directed against the judgment dated 7.2.2003 passed by the Principal Judge, Family Court, Dhanbad in Title Matrimonial Suit No. 22 of 2001, whereby the suit filed by the plaintiff-appellant for a decree of judicial separation under Section 10 of the Hindu Marriage Act has been dismissed on contest. 2. The plaintiff-appellant, who is the wife, filed the aforementioned suit for a decree of judicial separation on the ground, inter alia, that about 22 years back she was married with respondent No. 1 and were blessed with two female children and both the appellant and respondent No. 1 live together at their matrimonial home. About seven years back, the respondent No, 1 married with another lady, the respondent No. 2 and the latter started living with her children. The plaintiffs further case was that the matrimonial house became a curse for her because of starting of series of quarrel, assault and torture and finally she was ousted from the matrimonial house. 3. The suit was contested by the defendant-respondent by filing written statement. The case of the respondent-husband was that the plaintiff lives with him alongwith female children and the allegation of marrying respondent No. 2 and/or keeping her as concubine is false and baseless. 4. The Court below formulated an issue for determination as to whether the plaintiff-appellant is entitled for a decree of judicial separation in terms of Section 10 of the Hindu Marriage Act, 1955. 5. It appears that the plaintiff examined two witnesses including herself and supported her case by deposing that the respondent No. 1 deserted her and re- married with respondent No. 2. However, she stated that the second marriage of her husband took place with her consent. 6. On the other hand, the respondent No. 1 examined five witnesses and the Court below recorded a finding that there is consistent testimonies of all these witnesses that the parties are well known since long and they have two married daughters. The Court below further recorded a finding that the plaintiff failed to establish the second marriage but the evidence has come that the respondent No. 2 is living as concubine. After analysing the evidences, the Court below finally came to the conclusion that the plaintiff-appellant failed to establish her case of judicial separation by reliable and convincing evidence. 7. The Court below further recorded a finding that the plaintiff failed to establish the second marriage but the evidence has come that the respondent No. 2 is living as concubine. After analysing the evidences, the Court below finally came to the conclusion that the plaintiff-appellant failed to establish her case of judicial separation by reliable and convincing evidence. 7. In the light of finding recorded by the Court below, the only question that falls for consideration is whether the Court below was justified in dismissing the suit for judicial separation. 8. Section 10 of the Hindu Marriage Act, 1955 reads as under : "Judicial separation.-(1) Either party to a marriage whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (i) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory, for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so." From the reading of the aforesaid provision, it is manifest that a decree of judicial separation can be passed at the instance of the wife on the ground s enumerated in sub-section (2) of Section 13 of the said Act. Sub-section (2) of Section 13 of the said Act reads as under : " (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was live at the time of the solemnization of the marriage of the petitioner : Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years". 9. Clause (ii) of sub-section 2 of Section 13 of the said Act speaks about the husband having been guilty of rape, sodomy or bestiality after the solemnization of marriage. In our view, therefore, even if the factum of second marriage of the respondent No. 1 with the respondent No. 2 has not been established, there is sufficient evidence that respondent No. 2 is living with respondent No. 1, either as a second wife or as a concubine. A finding to that effect has also been recorded by the Court below. 10. It has also come in evidence that the plaintiff-appellant had been subjected to torture because of the respondent No. 2 living with respondent No. 1. A finding to that effect has also been recorded by the Court below. 10. It has also come in evidence that the plaintiff-appellant had been subjected to torture because of the respondent No. 2 living with respondent No. 1. It is well settled that cruelty must not always be of such a character as to cause danger to life, or health but harm or injury to health, reputation, mental pain will also amounts to cruelty. In our view, therefore, the evidence which came on record are sufficient for holding that the plaintiff-appellant is entitled to a decree for judicial separation. The Court below, therefore, committed serious illegality in dismissing the suit without considering the evidence in its right perspective. 11. The respondent No. 1 entered appearance through the counsels, namely, Mr. Anil Choudhary, Mr. Devendra Kumar, Mr. Raj Kumar Sinha and Mr. S.K. Mishra. This appeal was taken on 8.11.2004 for final disposal but because of non appearance of the said counsels of the respondent No. 1, the hearing was adjourned for today. Today, also none appeared on behalf of the respondent No. 1. It is unfortunate that although number of counsels entered appearance on behalf of the respondent No. 1 but none of them even bothered to represent the respondent No. 1 and assist the Court. 12. For the aforesaid reasons, this appeal is allowed and the impugned judgment passed by the Family Court is, hereby, set aside. Consequently, the suit for judicial separation is decreed. In the facts and circumstances of the case, the respondent No. 1 shall be liable to pay a sum of Rs. 1,000/- (one thousand) by way of cost. If is not paid by the respondent No. 1 to the appellant, she will be entitled to execute this Order by filing an application before the Family Court, Dhanbhad.