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2010 DIGILAW 621 (JHR)

Shanti Devi v. Anil Kumar Agarwal

2010-05-19

PRADEEP KUMAR

body2010
JUDGMENT Pradeep Kumar, J.- Heard the learned counsel for the appellants and learned counsel for the Respondent. 2. The instant First Appeal has been filed by Shanti Devi, Appellant, who was defendant in the suit below, when the decree of divorce granted by Smt. Vidyut Prabha Singh, 2nd Additional District Judge, Hazaribagh in M.T.S. ease No. 21 of 1992, whereby learned Additional Judge by its order dated 7.9.1998 dissolve the marriage of the appellant, Shanti Devi with the respondent-plaintiff, Anil Kumar Agarwal. 3. It is submitted by learned counsel for the appellant, wife that the respondent-plaintiff, Anil Kumar Agarwal failed to prove any act of cruelty committed by the appellant-defendant and those stated in the plaint and proved by the evidences are not act of cruelty and as such the grant of decree and divorce on the ground of cruelty is bad in law and fit to be set aside. He has further submitted that the decree has been passed also on the ground of desertion of matrimonial house by the appellant for more than two years, but the said ground was not available to the plaint when the suit was filed and as per the Section 13(1)(b) of the Hindu Marriage Act, 1955, the desertion should be of more than two years on the date when the application is filed. As such the judgment and decree passed on 7.9.1998 is bad in law and fit to be set aside. 4. On the other hand, learned counsel for the respondent-plaintiff, husband has submitted that the respondent-plaintiff have proved beyond reasonable doubts the acts of cruelty committed by the appellant immediately after her marriage with the plaintiff and also proved that after living for few months at her matrimonial house, she finally left her house on 5.4.1991 and thereafter, she never returned to her matrimonial house at Hazaribagh. As such, the grant of decree of divorce of judgment dated 7.9.1998 after about 7 years was well within the definition of desertion as also the act of cruelty and hence the decree was rightly granted. As such, the grant of decree of divorce of judgment dated 7.9.1998 after about 7 years was well within the definition of desertion as also the act of cruelty and hence the decree was rightly granted. He has further submitted that the appellant was living separately right from 1991 and after completion of two years of desertion the application was filed for amendment of the plaint which was allowed by the trial court after hearing both the parties and that amendment was never challenged in any court by the appellant-defendant and as such, the said amendment has become final and the case on desertion started on the date when the amendment was allowed and as such passing of the decree from that date after lapse of more than two years is well within the jurisdiction of the court and requires no interference. 5. After hearing both the parties and after going through the evidences on record, I find that the respondent-plaintiff, Husband, Anil Kumar Agarwal filed the matrimonial title suit before the District Judge, Hazaribagh on 1st June, 1992 u/s 13(1)(c) of the Hindu Marriage Act, 1955. The respondent-plaintiff case in the plaint was that the plaintiff, Anil Kr. Agarwal and the defendant, Shanti Devi both are the domicile of India and Hindu by faith and religion. On 4th February, 1990 the plaintiff, Anil Kr. Agarwal aged about 28 years lawfully married Shanti Devi aged 19 years according to Hindu rites at Bariatu, Ranchi. The marriage was solemnized as per Hindu rites and custom of the Agarwal. After marriage Shanti Devi-Defendant came to Hazaribagh on 5.2.1990 and started living with the petitioner in his house as husband and wife. Subsequently, on her 'rukhsadi' she went back to Ranchi on 9.2.1990 and again came back from Ranchi to her sasural on 12.12.1990. Out of the wedlock, a son was born to her in the month of October, 1991 at Ranchi. It is stated that immediately after her marriage Shanti Devi demanded that she should be sent back to Ranchi to continue her education, whereupon, the plaintiff-husband suggested that there are good colleges at Hazaribagh and she should continue her education at Hazaribagh itself. It is stated that immediately after her marriage Shanti Devi demanded that she should be sent back to Ranchi to continue her education, whereupon, the plaintiff-husband suggested that there are good colleges at Hazaribagh and she should continue her education at Hazaribagh itself. But, the appellant-wile, Shanti Devi did not agree and started ill treating the plaintiff-respondent, being encouraged by her father, Ram Awatar Prasad Agarwal and her family members and finally when she refused to return from Ranchi, then on the ground of cruelty a suit was filed by the plaintiff-husband on the ground that' after coming to Hazaribagh on rukhsadi on 12.12.1990, defendant-Shanti Devi wanted to go back to Ranchi to continue her studies which as opposed by her Husband-Plaintiff. Then her father also pressurized for sending her back and when the plaintiff-husband refused to send her back, then on the ground of illness of Shanti Devi's mother at Bariatu, Ranchi, they sent her brother, Vijay Agarwal alongwith one Baijnath Pandey with a letter of her father, Ramavatar Prasad Agarwal stating that the mother of Shanti Devi is seriously ill and she should be sent back immediately to Ranchi. Her father also gave threatening in the letter that if, she is not sent back, then they will have to face dire consequences. Smelling foul play, plaintiff-husband sent Shanti Devi with her brother, Vijay Agarwal and one Baijnath Pandey after obtaining a certificate from them that Shanti Devi will be sent back immediately to her sasural after the recovery of her mother's health. She left her sasural on 5.4.1991 with her brother Vijay. He further took ground that on 2.6.1991 when he went to his sasural to bring his wife back, he was abused and humiliated by his father-in-law and his family members. He had come back alone. Thereafter, plaintiff and his father approached Mahila Lok Samiti at Hazaribagh and convener of the Samiti Mrs. Monika Roy was asked to intervene in the matter. Plaintiff-respondent also approached the Agarwal Maha Sabha and its President, Sri Paras Nath Agarwal to use their good office in bringing back their daughter-in-law. It is submitted that both Mrs. Monika Roy and Sri Paras Nath Agarwal failed to bring her back. Monika Roy was asked to intervene in the matter. Plaintiff-respondent also approached the Agarwal Maha Sabha and its President, Sri Paras Nath Agarwal to use their good office in bringing back their daughter-in-law. It is submitted that both Mrs. Monika Roy and Sri Paras Nath Agarwal failed to bring her back. They also stated that on 20.6.1991 at about 6 p.m. Father of the defendant Shanti Devi alongwith his son Vijay, son-in-law, Hari Prasad Agarwal and others came and entered the house of the plaintiff by force in their absence and abused plaintiff's mother and attempted to drag her by force to take her to Ranchi calling her a witch. A complaint case was filed to the C.J.M., Hazaribagh vide complaint 'case no. 201 of 1991 in which all the accused persons were held guilty. However, due to that incident, plaintiff's mother became ill and ultimately she died on 3.6.1995. Thus, the plaintiff acknowledge that immediately after his marriage with the defendant till the date of filing of suit, he had not one day led a peaceful married life with the defendant-wife due to the act of cruelty by the appellant-defendant and hence the suit was filed. It is important to note that subsequently, on 5.3.1998 an amendment petition was filed by the plaintiff taking the point of desertion made by defendant-wife right from 5.4.1991 till 3.3.1998 and since, she deserted her in-laws and also the company of the husband for more than two years, plaintiff claimed that he should be granted decree of divorce also on the ground of desertion as per Section 13(1)(b) of the Hindu Marriage Act. A rejoinder was also filed by the defendant-wife opposing the same and after hearing both the parties, learned District Judge by its order dated 10.3.1998 allowed the said amendment. The aforesaid amendment was not challenged by the defendant in either revision or appeal rather thereafter, parties proceeding for hearing. 6. On the other hand the defendant-appellant, wife, Shanti Devi appeared in this case and filed a written statement contesting the suit. The defendant's case in the written statement was that they admitted that plaintiff and defendant were married according to Hindu rites and lived as husband and wife with the family members of the plaintiff-husband, but she alleged that as the family members of the plaintiff-husband started ill-treating and misbehaved with her. The defendant's case in the written statement was that they admitted that plaintiff and defendant were married according to Hindu rites and lived as husband and wife with the family members of the plaintiff-husband, but she alleged that as the family members of the plaintiff-husband started ill-treating and misbehaved with her. The plaintiff-respondent and his family asked her to bring various articles colour T.V., VCR and other valuable articles and also sending her ornaments, for which a complaint was also filed at Ranchi being complaint case no.262 of 1993. She stated that she lived with her husband for about 4-5 months at Hazaribagh, but her in-laws always ill-treated her and demanded various articles, whereupon, she came back to Ranchi and started living with her father, due to the cruel act of the plaintiff's family members. Subsequently, a son was born to her in October 1991 out of the said wedlock. Thereafter, she passed her higher secondary examination, but she was not allowed to continue her education at Hazaribagh and the allegation made in para-4 are denied. She stated that she never ill-treated her father-in-law, mother-in-law, husband or any members of the in-laws family. She stated that the ground stated in para-5 of the plaint are all created, false and fabricated. She stated that due to ill-treatment meted by her husband and in-laws she was brought back to Ranchi by her father. She also denied the allegation made in para-2 and 3 and stated that her father and family members never caused any injury to the plaintiff or his family members. She also denied the ,allegation made in para-4 and 5 of the plaint and stated that she has got no affair with any person known as Bablu. She also stated that since, plaintiff and his family members failed to maintain her, she (defendant-wife) has filed a separate case of maintenance at Ranchi being Misc. Case No. 39 of 1993. She denied that there was any cause of action to file suit of divorce on the ground of cruelty. An additional written statement was also filed by the defendant on 19.3.1998 in which she ' stated that the allegation made in para 6 of the plaint is also denied. The mother of the plaintiff died a natural death due to heart failure because she was suffering from the disease much before her marriage with the plaintiff. An additional written statement was also filed by the defendant on 19.3.1998 in which she ' stated that the allegation made in para 6 of the plaint is also denied. The mother of the plaintiff died a natural death due to heart failure because she was suffering from the disease much before her marriage with the plaintiff. She has further stated in reply to the statement of the para 7(A) of the plaint that she had filed a case for mental torture and cruelty u/s 498A I.P.C. and 3/4 D.P. Act which was rejected by the trial court, but the appeal is pending before the Hon'ble High Court, Ranchi Bench. She also stated that after 5.4.1991 she (defendant) made many attempts to reside at her sasural and went with her father for intervention to Hazaribagh, but she was refused to stay at the house of plaintiff and as such, it is the plaintiff who refused to keep the defendant-wife with him. 7. It appears that in course of trial, plaintiff has examined 5 witnesses: P.W.1 is Mrs. Monika Roy. P.W.2 is Virendra Prasad Agarwal. P.W.3 is Bhola Prasad. P.W.4 is Anil Kumar Agarwal. P.W.5 is Kedar Nath Agarwal. 8. The defendant has also examined 4 witnesses: D.W.1 is Ram Awatar Prasad Agarwal. D.W.2 is Hari Prasad Agarwal. D.W.3 is Naresh Sao. D.W.4 is Shanti Devi. 9. P.W. 1, Monika Roy has stated in the court that she knows both the parties and the plaintiff, Anil Kumar Agarwal on 3rd April, 1991 filed an application in her office stating that he is being tortured by his wife, who is bent upon going to her father's house at Ranchi and he requested her for help. Then she went to the house of the plaintiff and had a talk with has wife Shanti Devi, but she stated that her mother is ill and she will not stay here and asked her to fetch her to Ranchi. She stated that presently she is going to Patna for some personal work and after she returned from Patna, she will arrange for her going to Ranchi. She stated that on 6.4.1991 when she came back from Patna and went to the house of Plaintiff, then' she was informed that Shanti Devi had left for Ranchi with her brother. She stated that presently she is going to Patna for some personal work and after she returned from Patna, she will arrange for her going to Ranchi. She stated that on 6.4.1991 when she came back from Patna and went to the house of Plaintiff, then' she was informed that Shanti Devi had left for Ranchi with her brother. Then she asked them to wait, probably, she would come back on her own after her mother become all right. But, when she did not return even after two months and she was again approached then on 7th June alongwith one person she came to Ranchi and went to the house of Shanti Devi and talked to her mother, father and other members. She stated that father of Shanti Devi stated that mother of Anil is witch and until and unless she comes to Ranchi and touch his wife to make her well, then only his daughter will go back to Hazaribagh. She also stated that the atmosphere of the sasural of Shanti is not proper for her and hence, it would be better, if Anil stay here in his house. Thereafter, she talked to Shanti and told her that she is educated lady and how she is believing her father's notion of witch and witchcraft, to which Shanti replied that since, her father believed the same, she also believed. Monika Rai again asked Shanti Devi's father and mother, but they said that it would be better if Anil come and stay at Ranchi as 'Ghar Jamai'. Thereafter, she came back to Hazaribagh and gave a written report of her visit to Ranchi in a letter head of her institution. She proved the said letter as Ext.-1 in the trial. In her cross-examination she has stated that she is a graduate in commerce and presently running Nav Bharat Jagriti Kendra registered under the Society Registration Act and she can produce the paper of her institution. She also stated that as per the rules of her organization in every case they submit a report to the person concern and copy of the same is kept in their office also. She also stated that the cost of her travel to Ranchi was bear by her 'Sanstha' and not by the party. She denied that the report is created one. 10. She also stated that the cost of her travel to Ranchi was bear by her 'Sanstha' and not by the party. She denied that the report is created one. 10. P.W.2, Birendra Prasad Agarwal has stated that he is the father of plaintiff, Anil Kr. Agarwal who was married with the Defendant Shanti Devi on 4.2.1990 at Ranchi as per Hindu rites and after marriage she came to the house at Hazaribagh on 5.2.1990 and after staying for 4/5 days she went back to Ranchi. Again, after rukhsadi she came back to Hazaribagh on 12.12.1990 and stayed there. After coming to Hazaribagh, his brother came after sometime and stated that Shanti Devi should be sent back to Ranchi to continue her studies, whereupon, he and his son stated that she can continue her education at Hazaribagh itself. Then Shanti Devi's brother stated that since, their mother is also not well, Shanti has to be sent back so that she can look after her mother. Brother of Shanti also made allegation that mother-in-law of Shanti is a witch and due to her witchcraft his mother has become ill. Due to this false allegation a great mental torture was caused to him and his son, Anil Kr. Agarwal. But, they were not sorry for it. On 5.4.1991 Shanti's brother, Vijay again came with one Baijnath Pandey with a letter of his father stating therein that mother of Shanti Devi is ill and she should be sent back to Ranchi immediately with them otherwise, they should be ready to face dire consequences. This also caused great mental torture to his son, Anil. Ultimately, they become ready to sent Shanti Devi to Ranchi, however, he asked them to gave in writing that she will be sent back immediately after her mother become well, which was given in writing by the said Baijnath Pandey. It is stated that Shanti Devi left Hazaribagh with all her ornaments and belonging alongwith the said Baijnath Pandey and her brother. PW. 2 has further stated that since,• 5.4.1991, Shanti Devi never came back to her sasural. On 2.6.1991 when Anil Kr. Agarwal went to his sasural for bringing her back, then he was insulted and assaulted. Thereafter, they also wrote many letters for sending her back and also approached Smt. Monika Roy of Mahila Lok Samiti,. Hazaribagh. She went to Ranchi to bring her back, but failed. On 2.6.1991 when Anil Kr. Agarwal went to his sasural for bringing her back, then he was insulted and assaulted. Thereafter, they also wrote many letters for sending her back and also approached Smt. Monika Roy of Mahila Lok Samiti,. Hazaribagh. She went to Ranchi to bring her back, but failed. The mental torture of his son was growing every day. Then he again approached Agarwal Samaj. They also made attempt to pacify the matter and bring Shanti to Hazaribagh, but they also failed. On 20.6.1991, father of Shanti, Mr. Ram Prasad Agarwal with his son, Vijay Agarwal and others came and entered his house by force in absence of his son, Anil and forcibly wanted to drag out his wife calling her witch and wanted to take her Ranchi by force, but on the intervention of the mohalla people they failed. P.W. 2 further stated that after the said incident, they lodged complaint in the Court of Chief Judicial Magistrate and the case was heard by Smt. Seema Sinha, Judicial Magistrate, Hazaribagh, who found all the accused persons guilty and released them after giving them due admonition. P.W. 2 also stated that Defendant Shanti Devi and her family members wanted that Anil Kr. Agarwal should stay at Ranchi as Ghar Jamai in their house. In this situation, he has stated that now it is not possible for Anil to live with his wife. In cross-examination, he has stated that complaint was made by Anil after taking advice from a Lawyer. He admitted in cross-examination that after 5.4.1991 she never came back to Hazaribagh as his son had gone to bring her back many a time. He also stated that they never demanded any dowry from Shanti or from her father. However, he has stated that a scooter was given by Shanti Devi's father to his son-in-law after marriage. He denied that any T.V., V.C.R. etc. were demanded by his son, Anil Kr. Agarwal. 11. P.W. 3, Bhola Prasad stated in court that he knows both. parties and he is well converse with the writing of Sri Ram Avatar Prasad Agarwal, father of the defendant-Shanti Devi. He denied that any T.V., V.C.R. etc. were demanded by his son, Anil Kr. Agarwal. 11. P.W. 3, Bhola Prasad stated in court that he knows both. parties and he is well converse with the writing of Sri Ram Avatar Prasad Agarwal, father of the defendant-Shanti Devi. He has proved the letter of Ram Avatar Prasad Agarwal marked as Ext.-2 to 2/A. He also proved the writing of Baijnath Pandey on his letter of undertaking marked as Ext.-2/C. In his cross-examination he has denied that he has got any relation with Anil. He also stated that he does not know the father's name and residence of Baijnath Pandey. 12. P.W. 4 is Anil Kumar Agarwal, the plaintiff in the trial court and respondent in the appeal. He has supported his case and submitted that on 4.2.1990 he was married with the Defendant, Shanti Devi at Bariatu, Ranchi as per the Hindu rites and thereafter she came to Hazaribagh and stayed for 4 days and left for Ranchi on 9.2.1990. Subsequently, on Rukhsadi she came back to Hazaribagh on 12.12.1990. After her coming to Hazaribagh, she again wanted to go back to Ranchi to continue her studies, whereupon, he asked her that since there are good colleges of Hazaribagh, she should continue her studies at Hazaribagh, but she refused. She also started ill-treating his mother and father and stated that her mother is ill at Ranchi due to 'witchcraft' done by her mother-in-law, who is 'witch'. She was not sorry for saying so against her own mother-in-law. He has stated that on 5.4.1991 one Baijnath Pandey alongwith Defendant's brother, Vijay Agarwal came to their house with a letter from Ramavatar Prasad Agarwal, father of the defendant and stating therein that she should sent back immediately back to Ranchi as her mother is ill, otherwise they will have to face dire consequences. He has proved the letter marked as Ext.-2/a. Thereafter on the advice of his parents he allowed her to go back to Ranchi alongwith the said Baijnath Pandey after taking undertaking that she will be sent back to her sasural immediately after the recovery of her mother. He also proved the letter written by Baijnath Pandey marked as Ext.-B. He has stated that defendant took all her ornaments and her belonging with her and thereafter they made many attempts to bring her back to Hazaribagh, but she never returned. He also proved the letter written by Baijnath Pandey marked as Ext.-B. He has stated that defendant took all her ornaments and her belonging with her and thereafter they made many attempts to bring her back to Hazaribagh, but she never returned. On 2.6.1991, he himself went to Ranchi, but she ill-treated him and her brother Vijay also rebuked and assaulted him. Then he came back to Hazaribagh. Then he wrote many letters to her and lastly requested Monika Roy, a social worker at Hazaribagh to bring her back, but she also failed. Then he again approached the President of Agarwal Samaj. Sri Paras Nath Agarwal, but he also failed to bring her back. He also stated that on 20.6.1991 when he was not at his house then his father-in-law and brother-in-law and others came to his house and by force they hold the hair of his mother and wanted to drag her out of the house to take her to Ranchi, but due to opposition of the mohalla people they failed in their act. Ultimately, he filed a complaint case before the Chief. Judicial Magistrate, Hazaribagh. Subsequently, after the trial defendants were found guilty by Smt. Seema Sinha, the then Judicial Magistrate. He has further stated that his father-in-law wanted him to live with them at Ranchi as 'Ghar Jamai'. He has stated that defendant, Shanti Devi also filed a case against them at Ranchi making a false allegation of demand of dowry and torture. But, they were acquitted after trial in the case. He has further stated that right since, 5.4.1991, she never returned back to her sasural and he had no relation with her and hence, she has deserted him (plaintiff) right from the said date. He denied that he ever tortured Shanti Devi or demanded any scooter or colour T.V. etc. from her or from her father. He has stated that he purchased his scooter out of his own money as second hand scooter. He also proved the letter written to Shanti under the certificate of posting as Exts.-3 to 3/G. He stated that he purchased the scooter having registration no. BR-1496339 from one Shyam Kishore Singh after giving cash amount to him. He has stated that he has filed this case on his own and not under advice of anybody. He also proved the letter written to Shanti under the certificate of posting as Exts.-3 to 3/G. He stated that he purchased the scooter having registration no. BR-1496339 from one Shyam Kishore Singh after giving cash amount to him. He has stated that he has filed this case on his own and not under advice of anybody. He also stated in cross-examination that in spite of many attempts made by him he failed to see his own child at Ranchi. Then on 2.6.1991 when he went to his sasural, he was not allowed to see his son. He has stated that due to this cruel act of his wife his mother become ill and became patient of heart. He has stated that he does not• know the address of Bablu. He denied that the scooter was given to him by his father-in-law. He denied that he made false allegation in the case. 13. P.W. 5, Kedarnath Agarwal has stated in court that he knows both parties and they were married on 4.2.1990 at Bariatu, Ranchi according to Hindu rites. He also stated that on 5.2.1990 Shanti Devi came to Hazaribagh after marriage and left after 'chauthari' on 9.2.1990 and thereafter she came to Hazaribagh after Rukhsadi on 12.12.1990. She always used to make demand for sending her to Ranchi to continue her studies, but Anil wanted her admission at Hazaribagh college, whereupon, she made plan to go to Ranchi on the ground of illness of her mother and also stated that her mother-in-law is a 'witch' and she had made her mother ill due to 'witchcraft', which caused great mental torture to Anil. Subsequently, her brother alongwith one Baijnath Pandey came to their house on 5.4.1991 with a letter from her father asking them to send her back as her mother is ill, otherwise they should be ready to face dire consequences. Thereafter, Shanti Devi was allowed to go to Ranchi, but they took undertaking from Baijnath Pandey that she will be sent back immediately after her mother is well and when subsequently, she did not return from Ranchi, then on 2.6.1991, Anil was sent to Ranchi where he was ill-treated. When his mother was called witch, then approach was made at Mahila Samiti headed by Monika Roy to go to Ranchi. She went to Ranchi on 6.4.1991, but failed to bring her back. When his mother was called witch, then approach was made at Mahila Samiti headed by Monika Roy to go to Ranchi. She went to Ranchi on 6.4.1991, but failed to bring her back. Thereafter, President of Agarwal Samaj, Sri Paras Nath Agarwal was approached. He also went to Ranchi, but failed to bring her back. Thereafter, several letters were written to Shanti by father of Anil Kr. Agarwal, but she did not come. Subsequently, on 20.6.1991 Shanti Devi's father, her brother and other members came to Hazaribagh and entered the house of Anil in his absence and started pulling out the hair of his mother by force to take her to Ranchi, but they failed to do so due to intervention of the mohalla people. Subsequently, when the case was filed before the Chief Judicial Magistrate, Hazaribagh, all the accused persons (defendants) were found guilty in that case and defendant and her father wanted to keep Anil Kr. Agarwal as 'Ghar Jamai' in their house at Ranchi. They failed to bring back Shanti Devi to Hazaribagh, then this case was lodged on the ground of torture. He has stated that Shanti Devi and her father filed false case on cruelty and demand of dowry, but after trial they were acquitted from the charges. Due to all these torture and cruelty, Anil's mother died. In his cross-examination he admitted that he is father of Anil's sister-in-law. He used to visit his daughter's sasural often and came to know about the occurrence during his visits. In his cross-examination he has stated that Anil was running business at Hazaribagh of agriculture medicine and seeds etc. . 14. Thus, from the plaintiff's witnesses (P.W. 1) it appears that after her marriage with the plaintiff-Anil Kr. He used to visit his daughter's sasural often and came to know about the occurrence during his visits. In his cross-examination he has stated that Anil was running business at Hazaribagh of agriculture medicine and seeds etc. . 14. Thus, from the plaintiff's witnesses (P.W. 1) it appears that after her marriage with the plaintiff-Anil Kr. Agarwal, Defendant-Shanti Devi stayed for 4 days on her first visit i.e. from 5.2.1990 to 9.2.1990 and when she again came after rukhsadi on 12.12.1990, then she wanted• to go back to Ranchi to continue her studies and when the same was objected by the plaintiff-husband, since there was good college at Hazaribagh, then on the ground of illness of mother and making allegation of witchcraft against her mother-in-law, she wanted to go to Ranchi and lastly succeeded when her brother came with one Baijnath Pandey on 5.4.1991 with a letter ' from her father stating that if she is not sent back, the plaintiff and his family members will have to face dire consequences. Then after getting the undertaking from the said Baijnath Pandey that Shanti Devi will came back after the recovery of her mother, she was allowed to go. All the witnesses have proved the act of cruelty as ground on behalf of the plaintiff. It appears that witnesses have also proved that in spite of many efforts made by the plaintiff himself, his lather and independent persons to bring his wife, Shanti Devi to Hazaribagh, she refused to came to Hazaribagh. Plaintiff-husband himself visited Ranchi on 2.6.1991, but he was illtreated, rebuked and assaulted. Thereafter, they approached a social worker, Monika Rai, who came to Ranchi on 6th June, 1991, but she also failed and parents of Shanti Devi asked her to send Anil to Ranchi so that he will live with them as 'Ghar Jamai'. The plaintiff has also proved the fact that subsequently, the President of Agarwal Samaj, Sri Paras Nath Agarwal was also sent to Ranchi for bringing her back, but he also failed. P.Ws. have also proved by evidence that even after the death of her mother-in-law, Shanti Devi-Defendant did not come to Hazaribagh at her in-laws place and filed a case of torture and dowry at Ranchi against her husband, father-in-law and others which was dismissed and the plaintiff and others were acquitted which is also a case of cruelty. 15. P.Ws. have also proved by evidence that even after the death of her mother-in-law, Shanti Devi-Defendant did not come to Hazaribagh at her in-laws place and filed a case of torture and dowry at Ranchi against her husband, father-in-law and others which was dismissed and the plaintiff and others were acquitted which is also a case of cruelty. 15. After going through the evidences as adduced by the plaintiff, let us now consider the evidence as brought by the defendant-appellant in the trial. Defendant witnesses (D.W. 1) Ram Awatar Prasad Agarwal stated in the court that Shanti Devi is his daughter and she was married with Anil Kr. Agarwal on 4.2.1990 at Ranchi and after marriage she went to her sasural. At sasural she used t9 be tortured by her husband, father-in-law, mother-in-law and others and they by force asked her to write a letter to him to send her ornaments at Hazaribagh. Then he sent back the ornaments through his son. Thereafter, his son-in-law, Anil Kr. Agarwal and his parents started demanding T.V. and V.C.R. Since, he failed to give T.V. and V.C.R. so they again started torturing her more. On 5.4.1991 he sent his friend, Baijnath Pandey alongwith his son, Vijay Agarwal to Hazaribagh to bring her back to Hazaribagh (sic-Ranchi ?). Subsequently, on 5.10.1991 she gave birth to a son. He has further stated that after 5.4.1991 her son-in-law never came to Ranchi for taking back her daughter. It is wrong to say that Anil came to Ranchi for taking back his wife and he was assaulted by them. It is also wrong to say that till, Shanti Devi stayed at Hazaribagh, she used to torture her in-laws and mother of Anil died to the said torture. He also denied that he has filed a false case u/s 498A I.P.C. against his son-in-law, father and mother which was dismissed by the court and appeal is pending in the High Court. In his cross-examination he has stated that he does not know as to whether the letter by which all the ornaments were called for at Hazaribagh have been filed or not. He also stated that at the time of marriage, T.V, VCR was demanded and he does not remember that he has stated in court that appellant never demanded any d9wry from him. He also stated that at the time of marriage, T.V, VCR was demanded and he does not remember that he has stated in court that appellant never demanded any d9wry from him. He also admitted that he had never gone to the in-laws house of Shanti Devi and he came to know about the torture from his son. He also admitted that Anil's father had filed a case in Hazaribagh in 1991 for which they were released after admonition. He has stated that in the year 1993 September month, 498A I.P.C. case was filed against the plaintiff and his parents. He denied that any attempt was made by Anil through Marwari Samaj to bring back Shanti Devi. He admitted at Para 17 that in the case filed by Shanti Devi u/s 498A I.P.C, the accused persons (plaintiff and others) were acquitted and they have filed an appeal in the High Court. 16. D.W. 2 is Hari Prasad Agarwal who has stated that in between 12.12.1990 to 5.4.1991, Shanti Devi stayed at her sasural when her in-laws used to demand TV & VCR and also to brought her ornaments from Ranchi and he had taken the ornaments of Shanti Devi to her sasural at Hazaribagh. After 5.4.1991, Anil Kr. Agarwal never came to Ranchi to see his wife and his son. In his cross-examination, he had admitted that another son-in-law of Ram Awatar Prasad Agarwal lives in his house as 'Ghar Jamai'. He also admitted that he had given evidence in the Ranchi Court in favour of Shanti Devi. 17. D.W. 3, Naresh Sao proved some acknowledgment cards filed by Ram Awatar Prasad Agarwal marked as Exts. A to N1. In his cross-examination he has admitted that he worked as Advocate Clerk with 'Chopra Wakil'. 18. D.W. 4, the defendant-Shanti Devi herself. She .has stated that after her rukhsadi on 12.12.1990 she went to her sasural at Hazaribagh. On 5.4.1991 she came back to Ranchi alongwith Baijnath Pandey and her brother, Vijay Agarwal. She has stated that during her stay in between 12.12.1990 to 5.4.1991, the behaviour of her in-laws were 'not good with her and they used to demand scooter from her father and used to say that if she will not ask her father to give a scooter, then she will be assaulted. She has stated that during her stay in between 12.12.1990 to 5.4.1991, the behaviour of her in-laws were 'not good with her and they used to demand scooter from her father and used to say that if she will not ask her father to give a scooter, then she will be assaulted. They also asked her to write a letter to her father to send her ornaments to her which was sent by her father through her brother. She had filed a case of torture against her husband and in-laws at Ranchi and now the case is pending before the High Court at Ranchi. She was blessed with a son in 1991 and after 5.4.1991 her husband never came to Ranchi. She had sent information of the child birth, but he did not come. She stated that it is wrong to say that from 12.12.1990 to 5.4.1991 she tortured her husband and mother-in-law and father-In-law and they wanted to continue her education at Hazaribagh. She also denied that she tortured her mother-in-law so much that she died. She also denied that her husband came to Ranchi on 2.6.1991 and he was assaulted by her father and ousted him from their house. She also denied that Monika Roy came to Ranchi for taking her back. She denied that she has got any relation with Bablu Gutpa. In her cross-examination she has stated that she has not completed her Homeopathy' training course, since it is two years course and college is at Dhurwa. In para 7 she has admitted, that she wants to practice Homeopathy medicine after completing her studies. She admitted that after 5.4.1991 she is staying at Ranchi. She admitted that she was called by her father. She admitted about the letter Ext.-e/2. In between 12.12.1990 to 5.4.1991 she was never sent to Ranchi. She admitted in para 13 after she left on 5.4.1991 that relationship with her husband became bad, but she denied calling her mother-in-law as witch. She stated in para 16 that firstly a criminal case was filed by her in-laws against her father. Thereafter, she filed a criminal case u/s 498A I.P.C. against her in-laws. She admitted in para 18 that in the 498A I.P.C. case filed by her, all the accused were acquitted by the Ranchi Court and she .has filed an appeal in the High Court. 19. Thereafter, she filed a criminal case u/s 498A I.P.C. against her in-laws. She admitted in para 18 that in the 498A I.P.C. case filed by her, all the accused were acquitted by the Ranchi Court and she .has filed an appeal in the High Court. 19. Thus, from the evidence of D.W.s. it appears that the D.W. 1, Ram Awatar Prasad Agarwal as well as D.W.4, Shanti Devi admitted that after marriage she stayed only for less than 4 months at Hazaribagh at her sasural i.e. from 12.12.1990 to 5.4.1991. She alleged that during this period the behaviour of her in-laws were not good with her and they used to demand the scooter and also asked her to write a letter, to her father to bring her ornaments. According to D.W. 4, the ornaments were brought to Hazaribagh by her brother. She has stated after coming to Ranchi on 5.4.1991, subsequently, she filed a case of torture u/s 498A I.P.C. against her husband and in-laws. Her father also stated that the plaintiff's father sent a letter through her daughter to send the ornaments which he sent through his son. D.W. 4 also stated that during the 4 months the behaviour of her in-laws were not good hence, she left her matrimonial house on 5.4.1991 with her father's friend, Baijnath Pandey and her brother and thereafter, she never went back. 20. In the light of the above evaluation, now I come to the argument made by learned counsel for the appellant that the learned trial court has wrongly granted decree of divorce on the ground of cruelty because although, cruelty has not been defined, but it can be gathered from the conduct of the parties. The plaintiff has alleged that on 5.4.1991 the defendant wife was taken from her in-laws house by force by one Baijnath Pandey and her brother and they had given an undertaking that after her mother is recovered, she will be sent back to Hazaribagh and that promise was not fulfilled. In this context, it is submitted by learned counsel for the appellant that promise made by a third person cannot be treated as binding on the appellant-defendant and she has denied that she tortured her mother-in-law by calling her witch and refused to come back in the house. In this context, it is submitted by learned counsel for the appellant that promise made by a third person cannot be treated as binding on the appellant-defendant and she has denied that she tortured her mother-in-law by calling her witch and refused to come back in the house. As such, cruelty has not been proved and the decree granted is bad in law and only fit to be set aside. 21. It will appear from the evidences discussed above that the defendant herself admitted that after 5.4.1991 she never went back to her in-laws house. It is also admitted that on 5.4.1991 her husband and her father-in-law, were not ready to send her back to Ranchi, but the said Baijnath Pandey brought a letter written by her father which she admitted in her evidence and which was 'proved by the plaintiff also in which her father has stated that if, she will not be sent back to Ranchi, then they should be ready for dire consequences. Thereafter, by taking an undertaking from the said Baijnath Pandey which has also been proved as Ext.-1/B, the defendant was allowed to go to Ranchi and it is admitted that she never came back. Although the defendant and her witnesses have denied that they called the plaintiff's mother a witch and they came to Hazaribagh on 20.6.1991 and the defendant's father, Ram Avatar Prasad Agarwal alongwith others entered the house of the plaintiff by force and by dragging the plaintiff's mother by force to take her to Ranchi, as she was a witch, whereupon, they were stopped by the Mohalla people for which a complaint case was lodged before the Chief Judicial Magistrate, Hazaribagh but, D.W. 1 and D.W. 4, both have admitted that they were found guilty by the Hazaribagh Court and they were left after due admonition. In that view of the matter, in spite of denial, it is admitted that in the complaint case they were found guilty. Although cruelty has not been defined in the Act, but Hon'ble Supreme Court has defined cruelty in its various judgment in the case of 01 A. Jaichandra vs. Aneel Kaur reported in 2005(2) SCC page 22", where in it has been held that "expression cruelty has not been defined in the Hindu Marriage Act, 1955. The said expression has been used in relation to human conduct or human behaviour. The said expression has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or• conduct of one, which is adversely affecting the other. It may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or heath, bodily or mentally. Further in the case of "Navin Kohli vs. Neelu Kohli reported in 2006(4) SCC page 558", wherein it has been held in para 51 that "mental cruelty can be plaintiff also in which her father has stated that if, she will not be sent back to Ranchi, then they should be ready for dire consequences. Thereafter, by taking an undertaking from the said Baijnath Pandey which has also been proved as Ext.-1/B, the defendant was allowed to go to Ranchi and it is admitted that she never came back. Although the defendant and her witnesses have denied that they called the plaintiff's mother a witch and they came to Hazaribagh on 20.6.1991 and the defendant's father, Ram Avatar Prasad Agarwal alongwith others entered the house of the plaintiff by force and by dragging the plaintiff's mother by force to take her to Ranchi, as she was a witch, whereupon, they were stopped by the Mohalla people for which a complaint case was lodged before the Chief Judicial Magistrate, Hazaribagh but, D.W. 1 and D.W. 4, both have admitted that they were found guilty by the Hazaribagh Court and they were left after due admonition. In that view of the matter, in spite of denial, it is admitted that in the complaint case they were found guilty. Although cruelty has not been defined in the Act, but Hon'ble Supreme Court has defined cruelty in its various judgment in the case of II A. Jaichandra vs. Aneel Kaur reported in 2005(2) SCC page 22", where in it has been held that "expression cruelty has not been defined in the Hindu Marriage Act, 1955..1I]e said expression has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or• conduct of one, which is adversely affecting the other. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or• conduct of one, which is adversely affecting the other. It may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or heath, bodily or mentally. Further in the case of "Navin Kohli V5. Neelu Kohli reported in 2006(4) SCC page 558", wherein it has been held in para 51 that "mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental heath, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that •he and all the members 'of his family are a bunch of lunatics. The allegation that members of the petitioner's family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty". Hon'ble Supreme Court has further held in para 52 that a criminal case filed by the wife against the Husband on false allegation is also sufficient to give a finding of cruelty and the finding of the High Court was set aside on that ground. 22. Thus, from the aforesaid judgment of the Supreme Court it is clear that the trial court rightly found that a false allegation of torture by the husband was made by the Defendant-wife, but they failed to prove the same and even the case filed u/s 498A I.P.C. failed and false allegation of torture, demand of dowry also amounts to cruelty against the husband. It is also important to note that the defendant resided with her husband only for 4 months in her in-laws house and she was not ready to live there and continue her studies and adamant to come to Ranchi and when her in-laws asked her to continue her education at Hazaribagh, then finally her father sent a threatening letter, which was proved as Ext.-1/A, alongwith unknown person, Baijnath Pandey and her son which forced the plaintiff to allow her to come to Ranchi and thereafter, she never went back and the above act coupled with her allegation that her mother-in-law is a witch which was also alleged by her father, it has been proved by the evidence of P.W. 1, Monika Rai in her .evidence also amounts to cruelty and in my opinion the trial court has rightly dissolved the marriage on the ground of cruelty. 23. Moreover, the learned counsel for the appellant has submitted that Respondent-Husband, Anil Kumar Agarwal has contracted marriage with another lady during the pendency of the appeal and he has relied upon the judgment reported in "Savitri Pandey vs. Premchand Pandey in 2002(2) SCC page 73 [: 2002(2) PLJR (SC)256]", where in Hon'ble Supreme Court has stated that where the appellant-wife is remarried during the pendency of the appeal, the said marriage will be subject to the decision in the appeal. In reply to that it has been submitted by learned counsel for the respondent that after passing of the decree on 7th September, 1998 •plaintiff waited for the period for filing an appeal and filed informatory petition in the High Court on 15.10.1998 and he was informed that no appeal has been filed, then he again filed informatory petition on 23.2.1999 on which date also he was informed that no appeal has been filed and when the period of filing appeal expired then he married in March 1999. It is admitted case of the appellant that she filed an appeal after the period of filing appeal expired on 26.2.1999 with a petition to condone the delay and as such no appeal was filed within time. It is admitted case of the appellant that she filed an appeal after the period of filing appeal expired on 26.2.1999 with a petition to condone the delay and as such no appeal was filed within time. Moreover, in the instant case since, decree has also been granted on the ground of desertion, it is admitted case that prayer for grant of divorce on the ground of desertion was made by the plaintiff, therefore amendment petition was filed when more than two years passed and the wife did not return to her matrimonial house. The petition was contested by the defendant and ultimately amendment was allowed since, more than two years have passed during the pendency of the suit and the defendant failed to come to her matrimonial house and since, no appeal or revision was filed that order became final and from the date of amendment it will be deemed that fresh petition for grant of divorce u/s 13(1)(b) on the ground of desertion was filed. 24. I find from the evidence as discussed above that no attempt on the part of the defendant or from her family members was made to send the defendant to her matrimonial house and resume her matrimonial life. In that view of the matter, I find that there is willful desertion also on the part of the wife-Appellant for no just cause from 5.4.1991 and plaintiff deserved divorce also on the ground of desertion. I find nothing illegal in the judgment passed by the trial court. 25. However, lastly learned counsel for the appellant has argued that no permanent alimony was granted to the wife while passing the decree of divorce. It was duty of the court to pass such an order so that permanent alimony should have been granted while passing the decree of divorce. 26. As stated above, since the plaintiff is businessman at Hazaribagh and it is admitted that he is doing business of agriculture• medicine and seeds and he has also contracted second marriage, in the interest of justice, while accepting the dissolution of marriage between the appellant and respondent, I direct the respondent-Husband, Anil Kr. Agarwal to pay Rs.5 lakhs to the appellant towards permanent maintenance to be paid within 3 months from the date of this order. Agarwal to pay Rs.5 lakhs to the appellant towards permanent maintenance to be paid within 3 months from the date of this order. The appellant will be at liberty to withdraw the said amount from the trial court ,where the respondent must deposit the said amount within stipulated period. In case the respondent failed to pay, the amount indicated above within the stipulated period, the decree of divorce granted to respondent-Husband shall stand dismissed. 27.The appeal is accordingly, dismissed with the aforesaid direction and the parties are directed to bear the cost. .