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2012 DIGILAW 37 (JHR)

Ravindra Kumar Tiwary v. Anandi Tiwari

2012-01-05

P.P.BHATT, PRAKASH TATIA

body2012
Judgment P.P. Bhatt, J. Heard the learned counsel for the appellant and the Respondent. 2. Perused the records and the proceedings. 3. The present appeal is preferred by the appellant/defendant being aggrieved and dissatisfied with the Judgment and Decree dated 20th February, 2009 passed in Matrimonial Suit no. 237 of 2005 by the Principal judge, Family Court, Jamshedpur whereby the suit for dissolution of marriage by a decree of divorce has been dismissed. 4. The facts of the case, in brief are as follows :- The appellant filed a petition under section 13 (i-a) (i-b) of the Hindu Marriage Act, 1955 before the Court of Principal Judge, Family Court, Jamshedpur for dissolution of his marriage with the respondent namely Smt. Anandi Tiwari by a decree of divorce. The suit was registered as Matrimonial Suit No. 237/2005. The Marriage of the Appellant with the respondent was solemnized on 13/7/1997 at Jamshedpur and thereafter, both lived as husband and wife in the house of the appellant. On 21.7.1997, the father of respondent came to the house of the appellant and took away the respondent with him with an assurance to send back the respondent on full moon day. But thereafter, the father of the respondent refused to allow the respondent to return to her Matrimonial house and sent information that he wants remarriage of the respondent with another boy. In December’ 1997, the respondent sent one registered letter to the appellant informing that she did not want to continue their marriage relationship and the appellant can solemnized remarriage. In February’ 1998, the respondent and his father pressurized the appellant for divorce. In July’ 1998, a meeting was held for reconciliation between the parties and thereafter, several efforts were made by the appellant to bring the respondent to the matrimonial house but every time the respondent refused to come back. Thereafter, the Appellant filed a Matrimonial Suit No. 142/2000 under section 9 of the Hindu Marriage Act for restitution of his conjugal rights, but the same was withdrawn on verbal assurance by the respondent to resume conjugal relationship. Unfortunately, though assured by the respondent, no such conjugal relationship resumed or restored between the husband and wife thereafter. The respondent filed written statement in the matrimonial suit in which she denied the allegations levelled against her and further alleged that the appellant had demanded Rs. Unfortunately, though assured by the respondent, no such conjugal relationship resumed or restored between the husband and wife thereafter. The respondent filed written statement in the matrimonial suit in which she denied the allegations levelled against her and further alleged that the appellant had demanded Rs. Two lacs as dowry and she was also tortured by the appellant in her matrimonial house and also demanded to bring a car from her parents. 5. Learned counsel for the appellant has submitted that the impugned judgment and decree is against the pleadings of the parties, facts and circumstances of the case, evidence and materials on record and therefore, requires to be set aside. It is submitted that the learned Principal Judge has failed to appreciate the evidence on record adduced on behalf of the appellant. It is submitted that the finding on the Issue No. 2, “Whether the respondent is living separately since 21.07.1997” and the issue no. 3 “Has the respondent deserted the applicant” has not been properly considered in the light of the evidence on record. It is further submitted that the learned Judge has failed to consider the evidence of P.W.1, narrated in paras 3 and 9, the evidence of P.W. 2, narrated in Paras 3, 4 and 9, the evidence of P.W. 3, narrated in paras 2 and 8 and the evidence of P.W. 4, stated in Paragraphs 2, 3, 8, 17, 26 and 39. Learned counsel for the appellant has further submitted that the witnesses examined on behalf of the appellant have categorically stated that the Respondent is residing separately from the appellant and she has deserted the appellant. It is submitted that merely by visiting of the appellant to the Respondent at Bangalore in her ailing condition, while she was in comma, cannot be considered that there was no desertion of continuous two years before presenting the petition for divorce, as there was sufficient evidence to show that the respondent deserted the appellant since 21.07.1997. It is further submitted that the learned court below has failed to appreciate that the appellant has been treated with cruelty, which has a wide meaning. It is submitted that to determine the magnitude of act of cruelty, the court below should have taken into consideration the fact that the Respondent herself withdraw from the society of the appellant with effect from 21.07.1997, within a short span of marriage. It is submitted that to determine the magnitude of act of cruelty, the court below should have taken into consideration the fact that the Respondent herself withdraw from the society of the appellant with effect from 21.07.1997, within a short span of marriage. The conduct of the Respondent, which is given in the evidence adduced before the court below, clearly suggests that the Respondent has treated the appellant with cruelty and tortured him and in support thereof, the learned counsel for the appellant has also referred evidence of P.Ws. 4 and 5 and submitted that the learned court below has failed to consider the material evidence led before him. In support of his contention, learned counsel for the appellant has referred to and relied upon the judgment rendered in the case of Satish Sitole versus Ganga (Smt.) reported in (2008) 7 SCC 734 . 6. As against that, learned counsel for the opponent/respondent submitted that the learned Principal Judge has rightly and properly considered the evidence on record and came to the conclusion for dismissal of the suit. It is submitted that the findings given by the court below are based on the evidence on record and the appellant has failed to establish before the court below that the respondent has deserted him for a continuous period of two years immediately preceding the presentation of petition by him, as the petition was presented by him on 23rd December, 2005 and admittedly, he was with the Respondent at Bangalore in September, 2005. It is further submitted that the appellant has failed to bring on record any specific evidence with regard to any specific occurrence of any act of cruelty or torture done by the respondent to him. It is submitted that the general allegations were made by the appellant. It is submitted that the ingredients as required under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage, were not satisfied and therefore, the learned court below has rightly after appreciation of the evidence on record, dismissed the suit for dissolution of marriage. Learned counsel for the respondent has cited the following judgment in support of his case. (i)In the case of Sanjeeta Das versus Tapan Kumar Mohanty reported in 2010 (4) JCR 157 (SC). (ii)In the case of Jagdish Singh-versus-Madhuri Devi reported in (2008) 10 SCC 497 . Learned counsel for the respondent has cited the following judgment in support of his case. (i)In the case of Sanjeeta Das versus Tapan Kumar Mohanty reported in 2010 (4) JCR 157 (SC). (ii)In the case of Jagdish Singh-versus-Madhuri Devi reported in (2008) 10 SCC 497 . (iii)In the case of Chetan Dass versus Kamla Devi reported in 2002 (1) J.C.R. 162 (SC). (iv)In the case of Vishnu Dutt Sharma versus Manju Sharma reported in (2009) 6 SCC 379 . (v)In the case of Hitesh Bhatnagar versus Deepa Bhatnagar reported in 2011 (3) P.L.J.R. (SC) 7. 7. Considering the aforesaid rival submissions and on perusal of the records and proceedings, it appears that the matrimonial suit for dissolution of marriage was filed by the appellant against the respondent before the learned Principal Judge, Family Court, Jamshedpur on the ground of cruelty and desertion. It appears that the appellant examined four witnesses including himself. P.W. 1-Jainath Singh is the neighbour of the appellant, has stated that after 21.07.1997, the respondent never returned to her matrimonial house and he had heard about the other facts from the appellant regarding the behaviour of the respondent. P.W. 2- Bijendra Kumar-This witness has also stated that the Respondent never returned to her matrimonial house after 21.07.1997, although several efforts were made by the appellant to bring her back. On perusal of oral evidence given by P.W.3-Chandan Kumar, it appears that this witness has also reiterated the fact that the respondent did not return to the house of the appellant after 21.07.1997. On perusal of evidence of P.W. 4-Ravindra Kumar Tiwari, (original petitioner-appellant herein) it appears that he has corroborated the averments made in his petition as well as evidence given by other witness. This appellant has specifically stated that the respondent remained in his house for six days only after the marriage and left the house of the appellant on 28th January, 1997 of her own without any dispute and differences. The appellant has also stated in his oral evidence about the behaviour of respondent, which can be construed as cruelty. 8. The Respondent has also examined four witnesses including herself in support of her case. She stated that she is ready and willing to live with the appellant and is also ready for any settlement. She has also stated that the appellant was in Bangalore when she was ill. 8. The Respondent has also examined four witnesses including herself in support of her case. She stated that she is ready and willing to live with the appellant and is also ready for any settlement. She has also stated that the appellant was in Bangalore when she was ill. RW 2-Rakesh Kumar and RW-3-Anil Kumar Sinha have supported the version of the Respondent. R.W. 4-Prabhunath Singh has supported the Respondent's case. 9. We have carefully examined and considered the evidence on record and on perusal of the same, one fact becomes clear that the Respondent left the matrimonial house of the appellant on 28.01.1997, that within a short span of marriage and thereafter, has never returned to the appellant's home. Thus, the ground of desertion canvassed by the appellant, appears to be genuine. Mere visit by the appellant to Bangalore, when the respondent was sick, cannot be considered as obstruction for the grant of dissolution of marriage while calculating the period of desertion, which is required under Section 13 of the Hindu Marriage Act, 1955, prior to the institution of a Divorce Petition. 10. As per section 13 of the Hindu Marriage Act, 1955 the divorce can be granted on the grounds enumerated therein which includes 'cruelty'. The Hon'ble apex Court while delivering judgment in a case of Maya Devi versus Jagdish Prasad reported in AIR 2007 SC 1426 observed as under: - “The cruelty, which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. The cruelty need not be physical. If from the conduct of the spouse, it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty.” 11. The cruelty need not be physical. If from the conduct of the spouse, it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty.” 11. We have also perused the judgments referred to and relied upon by the learned counsel for the parties, but the judgment, which is relevant and applicable for the purpose of deciding this case is the judgment rendered in the case of Satish Sitole versus Ganga (Smt.) reported in (2008) 7 SCC 734 . In the said case, parties remained separated for 14 years out of 16 years of marriage. The Supreme Court was convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. It is observed by the Hon'ble Supreme Court that the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved. The continuance of such marriage would itself amount to cruelty. So far case law cited by the learned counsel for the respondent before us are concerned, it do not help to the case of the respondent in view of the facts of the present case. 12. In the present case also, the appellant and the respondent have remained separated for almost about more than 14 years. The Respondent-wife left the matrimonial home on 21.07.1997. The marriage of the appellant and the Respondent was solemnized on 13.07.1997 and the Respondent left the matrimonial home on 21.07.1997 i.e. only after 6 to 7 days, i.e. within a very sort span after the marriage. Thereafter, they never stayed together. There is a specific and consistent evidence on record to this effect by the witnesses examined by the appellant, i.e. P.W. 1 to P.W. 4 which remained uncontroverted. Thereafter, they never stayed together. There is a specific and consistent evidence on record to this effect by the witnesses examined by the appellant, i.e. P.W. 1 to P.W. 4 which remained uncontroverted. The only ground, which is canvassed by the respondent to dispute this fact is the non compliance of continuous desertion of two years, which is required before the institution of the matrimonial suit and according to her the said requirement which is not strictly complied with in the present case, as the appellant visited Bangalore to see her when she was hospitalized at Bangalore and when she was in Comma. The appellant appears to have stayed there at Bangalore for about 3 to 4 days till the Respondent came out from Comma but, in our opinion, this fact should not be construed as obstruction for the purpose of considering or calculating the continuous period of desertion, which is required for the institution of matrimonial suit. Looking to the facts of the case and considering the long period of separation, such technical plea should not be allowed, when the relationship of marriage was virtually not in existence. The cruelty alleged by the appellant has a wider meaning and non-cooperation by the Respondent and staying away from the appellant from their matrimonial life itself construed as a cruelty. 13. On perusal of the evidence on record, it also appears that the respondent is working as an L.I.C. agent and having independent source of income over and above support of the father, who is also encouraging her only daughter, has resulted into breakdown of marriage. The Hon'ble apex Court in the case of Geeta Jagdish Mangtani versus Jagdish Mangtani reported in (2005) 8 SCC 177 , on such facts held that the husband is entitled to divorce. In a case before the Hon'ble Supreme Court, briefly, the facts are that the marriage between the parties took place on 02.11.1992 at Ulhasnagar, Mumbai, where the husband resides with his parents and other family members. The wife stayed in the matrimonial home up to 02.06.1993. In between she had returned to her parents' house at Adipur, Bhuj (Gujarat) on a couple of occasions to join her service as a teacher in a school at Anjar, Bhuj, Gujarat. The wife is teaching in the Municipal School at Anjar since prior to marriage. The wife stayed in the matrimonial home up to 02.06.1993. In between she had returned to her parents' house at Adipur, Bhuj (Gujarat) on a couple of occasions to join her service as a teacher in a school at Anjar, Bhuj, Gujarat. The wife is teaching in the Municipal School at Anjar since prior to marriage. It is the common case of the parties that on 02.06.1993, the appellant wife left the husband's house for her parents' house at Adipur in Bhuj, Gujarat for her first delivery. A son was born on 11.11.1993. The fact is clearly established on record that after 02.06.1993, the appellant never returned to her husband to join him in the matrimonial home in Ulhasnagar. Therefore, the Hon'ble Supreme Court has reached to the conclusion that there was never any attempt on the part of the wife to go to her husband's house i.e. matrimonial home of the parties after she left on 02.06.1993. From this fact alone animus deserendi on the part of the wife is clearly established. In the facts and circumstances of the case, the Hon'ble Supreme Court has observed that it cannot be said that this desertion on the part of the wife was with a reasonable cause. Such a course of conduct over a long period indicates total abandonment of marriage and cannot be justified on the ground of monetary consideration alone as a reasonable cause to desert. The Hon'ble apex Court held that it also amounts to wilful neglect of the husband by the wife and from such fact, it was held that the husband is entitled to divorce. 14. In a case of Durga Prasanna Tripathy versus Arundhati Tripathy reported in (2005) 7 SCC 353 the Hon'ble apex Court held that both parties leaving separately for almost fourteen years and endeavour to effect a reconciliation between the husband and the wife failed and there was no possibility of resuming normal marital life, though wife is willing to join the husband. Thus, the marriage had irretrievably broken down and therefore, the order of the Family Court granting divorce, held, was liable to be affirmed. 15. Institution of marriage occupies an important place and role to play in the society in general. Therefore, the husband and wife both have distinct and joint responsibility to play in matrimonial life. Thus, the marriage had irretrievably broken down and therefore, the order of the Family Court granting divorce, held, was liable to be affirmed. 15. Institution of marriage occupies an important place and role to play in the society in general. Therefore, the husband and wife both have distinct and joint responsibility to play in matrimonial life. In the present case, looking to the peculiar facts and circumstances as emerged from the evidence of the case, clearly indicates that the marriage was practically dead for all practical purposes and there is no chance of it being retrieved. After filing of this appeal, this Court has also made an effort for conciliation and asked the parties to go for conciliatory proceedings but despite making sincere efforts by the conciliators, no fruitful result could be achieved and the Conciliators have submitted a failure report, which is also on the record. Likewise in the court below also efforts were made for conciliation but it could not succeed. Thus, having regard to the aforesaid facts and circumstances of the case, in our opinion, this is a fit case, wherein, the ingredients of 'Cruelty' provided under Section 13 for dissolution of marriage is satisfied and therefore the dissolution of marriage is required to be ordered by passing decree of divorce. Hence, the Judgment and Decree, dated 20th February, 2009 passed in Matrimonial Suit No.237 of 2005 by the Principal judge, Family Court, Jamshedpur whereby the suit for dissolution of marriage by a decree of divorce has been dismissed, is hereby ordered to be quashed and set aside and the marriage solemnized between the appellant and the Respondent, dated 13.07.1997 at Jamshedpur is ordered to be dissolved. The decree of divorce be passed accordingly. So far as the issue of grant of permanent alimony is concerned, the same can be decided only after evaluating and considering the evidence of the parties with regard to their financial capacity and social status and therefore the Respondent is at liberty to move appropriate application if she desires to do so before the competent court having jurisdiction and in the event of preferring such application by the Respondents, the same will decided in accordance with law by the competent court having jurisdiction.