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2016 DIGILAW 1612 (JHR)

Raj Kishor Mahto v. Lata Devi

2016-11-29

H.C.MISHRA, S.N.PATHAK

body2016
ORDER : I.A. No. 6398 of 2014 By Court :- The present interlocutory application has been filed for condonation of delay of 35 days in filing the instant appeal. In view of the statements, made in the interlocutory application, the delay in filing the appeal, is hereby, condoned. The aforesaid interlocutory application, thus, stands allowed. F.A. No. 185 of 2014 Heard learned counsel for the appellant as also learned counsel for the sole-respondent. 2. The appellant is aggrieved by the Judgment and Decree dated 8.7.2014, passed by the learned Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 448 of 2007, whereby the suit filed by the appellant for dissolution of marriage between the parties, by a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, has been dismissed with costs. 3. The Judgment, under appeal shows that the suit was filed by the appellant under section 13(1)(a) of the Hindu Marriage Act, which relates to the dissolution of marriage by a decree of divorce on the ground that after solemnization of marriage, the petitioner had been treated with cruelty by the respondent. However, the judgment shows that that the evidence was adduced by the appellant petitioner in the Court below to the effect that there was no marriage between the parties and they were between the degree of prohibited relationship, the respondent being the ‘Bua’ of the appellant petitioner. It is apparent from the judgment on record that there was no pleading or evidence as regards the cruelty meted to the appellant petitioner by the respondent. The only evidence that was adduced by the appellant petitioner in the Court below was that they were under the degree of prohibited relationship and there was no marriage between them. 4. However, it is an admitted fact that the respondent wife had filed a criminal case against the appellant for the offence under Section 498-A of the Indian Penal Code, in which, he was convicted by the Trial Court, but acquitted by the Appellate Court. It is also an admitted fact that the respondent had filed an application for maintenance for herself and the child, born out of their wedlock in the competent Court, which was also allowed and the appellant is presently making the payment of amount of maintenance to them. 5. It is also an admitted fact that the respondent had filed an application for maintenance for herself and the child, born out of their wedlock in the competent Court, which was also allowed and the appellant is presently making the payment of amount of maintenance to them. 5. So far as the evidence on the degree of prohibited relationship is concerned, it is stated in the Judgment under appeal that the appellant, who had examined himself in the Court below and had also filed his examination-in-chief, had simply stated in para-16 of the examination-in-chief, that the respondent is not his wife and in para-21, he had stated regarding the essential ingredients of Hindu Marriage, but he had not stated as to how and why the respondent comes within the degree of prohibited relationship. In his cross-examination, he had stated that the respondent is his co-villager. None of the witnesses, examined on behalf of the appellant had stated anything to show that the parties are under the degree of prohibited relationship, and accordingly, the suit was dismissed by the Court below. 6. Learned counsel for the appellant has submitted that the impugned Judgment and Decree, are absolutely illegal, inasmuch as, it is an admitted fact that a criminal case was filed by the respondent-wife, for the offence under Section 498-A of the Indian Penal code, which ultimately resulted in acquittal of the appellant, and this amounted to the cruelty meted out to the husband. 7. Learned counsel for the respondent-wife has opposed the prayer of learned counsel for the appellant. 8. We are unable to accept the submission of learned counsel for the appellant, in as much as, the appellant in his evidence has not admitted the marriage and living with his wife and he has also not stated anything about the cruelty by the wife, rather he has tried to make out a case that they were under the degree of prohibited relationship, but again, no evidence was adduced by the appellant to show as to how the parties are under the degree of prohibited relationship, which resulted in dismissal of the suit of the appellant. 9. 9. Even otherwise, the suit was filed for dissolution of the marriage by a decree of divorce on the ground of cruelty, under Section 13(1)(i-a) of the Hindu Marriage Act, and not under Section 11 of the said Act for a declaration of the marriage to be void by a decree of nullity of the marriage, on the ground that the parties were within the degree of prohibited relationship under Section 5(iv) of the Hindu Marriage Act. In view of the evidence adduced by the appellant in the Court below, the suit was not even maintainable under Section 13(1)(i-a) of the Hindu Marriage Act. Upon going through the record, we do not find any illegality in the impugned Judgment and Decree, worth interference in the appeal. 10. There is no merit in this appeal and the same is accordingly, dismissed.