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2016 DIGILAW 1642 (JHR)

Chandradeep Prajapati v. Basanti Devi

2016-12-07

H.C.MISHRA, S.N.PATHAK

body2016
JUDGMENT : 1. Heard learned counsel for the appellant. No one appears for respondent in spite of repeated calls though the respondent has appeared through advocate, after service of notice upon her. 2. The matter was initially taken up on 22.9.2016, when the learned counsel for the appellant was present, but no one appeared for the respondent and the matter was adjourned due to non-appearance of the respondent. The matter was again listed on 16.12.2016 and in spite of repeated calls, no one appeared for the respondent and we heard the learned counsel for the appellant in part and adjourned the case for today, also for giving a chance to learned counsel for the respondent. Today also, no one appears for the respondent in spite of repeated calls. Hence we have heard learned counsel for the appellant. 3. The appellant is aggrieved by the Judgment and Decree dated 6th of December, 2007, passed by the learned 1st Additional District Judge, Garhwa, in Matrimonial (Divorce) Case No. 7 of 2003. The said divorce case had been filed by the appellant himself against his wife for dissolution of marriage between the parties, by a decree of divorce, under Section 13 of the Hindu Marriage Act, alleging cruelty, desertion and adultery against his wife. The suit was decreed, but the appellant was directed to make the payment of Rs. 1,200/- per month for maintenance of the respondent and her daughter, or to pay a lump sum amount of Rs. 2,00,000/- to the respondent in lieu of monthly amount of maintenance. The appellant is aggrieved by this part of the impugned Judgment. 4. According to the appellant's case, both the parties were married in the year, 1997, according to Hindu rites and rituals and after the marriage, the respondent-wife started living with her husband in his house, but it is alleged that the respondent-wife became entangled with the elder brother of this appellant, namely, Madhaw Prajapati, which caused annoyance to the family members, including the other brother of the appellant. Due to the said illicit relationship with the elder brother of the appellant, the respondent also started treating the appellant with cruelty. Due to the said illicit relationship with the elder brother of the appellant, the respondent also started treating the appellant with cruelty. It is also alleged that due to objection by the younger brother Deo Kumar Prajapati, the elder brother Madhaw Prajapati committed the murder of his own brother Deo Kumar Prajapati on 26-2-2003, in which case, Madhaw Prajapati was put to trial in S.T. Case No. 73 of 2004, and he was convicted for the offence under Section 302 of the Indian Penal Code, and sentenced to life imprisonment. 5. It is further case of the appellant that the respondent-wife completely deserted him since the year 2000-01 itself and there was no cohabitation between both the parties, and hence the suit for dissolution of the marriage by a decree of divorce by the appellant on the ground of cruelty, desertion and adultery. 6. Upon notice, the respondent-wife appeared in the Court below and filed her W.S. on 18.5.2005, in which, she denied all the allegations and has also stated that they were having a girl of about 3½ years out of the wedlock. According to the respondent's case, the younger brother of this appellant was murdered by the extremists. The respondent also alleged that the appellant himself was in illicit relationship with the wife of the deceased brother and he used to torture the appellant for demand of dowry and ultimately she was driven out of her matrimonial home. 7. On the basis of the pleadings of the parties, the Court below, framed issues, including the issues relating to the cruelty, desertion and adultery by the respondent-wife. All these three issues have been decided in favour of the appellant in the Court below, mainly on the basis of the evidence of the father and mother of the appellant, who fully supported the case of the appellant and they also proved in the evidence that the respondent-wife was living in adultery with their elder son Madhaw Prajapati, and they had caught the respondent wife with Madhaw Prajapati in compromising position. They also stated that due to objections raised by their younger son, Deo Kumar Prajapati, he was murdered by their elder son Madhaw Prajapati, in which, he was convicted and sentenced to undergo life imprisonment. The Judgment of the Trial Court, convicting and sentencing Madhaw Prajapati was also proved in the Court below as Exhibit-1 on behalf of the appellant. They also stated that due to objections raised by their younger son, Deo Kumar Prajapati, he was murdered by their elder son Madhaw Prajapati, in which, he was convicted and sentenced to undergo life imprisonment. The Judgment of the Trial Court, convicting and sentencing Madhaw Prajapati was also proved in the Court below as Exhibit-1 on behalf of the appellant. 8. Discussing the evidences of both the sides, the Court below, came to the conclusion that the appellant had been able to prove his case that the respondent-wife had illicit relationship with Madhaw Prajapati. The Court below also taking into consideration the admission of the respondent-wife, found that the respondent-wife was living separately since the year 2001 deserting the appellant. On the basis of the evidence of the parties, the Court below also found that the respondent had treated the appellant with cruelty, and all these issues were decided in favour of the appellant. 9. On the basis of the above findings, the suit was decreed in favour of the appellant, dissolving the marriage between the parties on all the aforesaid three grounds. However, the Court below has also directed the appellant to make the payment of Rs. 1200/- per month, or one lump sum amount of Rs. 2,00,000/- for the maintenance of the respondent and her daughter, by which, the appellant is aggrieved. 10. Learned counsel for the appellant has submitted that since the Court had found that it was the respondent, who was living in adultery with the elder brother of this appellant, who also committed the murder of his younger brother due to this illicit relationship, it is a fit case, in which, any compensation ought to have been denied to the respondent. Learned counsel has further submitted that it is the conduct of the respondent herself, due to which, appellant has been forced to seek divorce from her. Learned counsel also submitted that even the girl child, said to be born out of the wedlock, is not the daughter of this appellant, which shall be evident form the fact that the Court below has given a clear finding that the respondent-wife had deserted the appellant, since the year 2001 itself. The W.S. was filed by the respondent-wife on 18.5.2005, in which, the age of the girl has been given as 3½ years. The W.S. was filed by the respondent-wife on 18.5.2005, in which, the age of the girl has been given as 3½ years. Learned counsel has, accordingly, submitted that this fact clearly shows that the child was conceived after separation from the appellant and it is a fit case, in which the alimony, as granted to the respondent, by the Court below, be set aside. 11. Having heard learned counsel for the appellant we find that all the issues have been decided by the Court below in favour of the appellant and against the respondent-wife. The respondent-wife was found to be living in adultery with the elder brother of the appellant and the said relationship was being objected by his younger brother, due to which, the younger brother of the appellant was murdered by his elder brother, for which, the elder brother has been sentenced to undergo imprisonment for life. The judgment of conviction, has also been proved in the Court below as Exhibit-1. Evidence has been adduced to the effect that after the conviction of the elder brother of the appellant, the respondent has come in contact with other criminal associates of the elder brother of the appellant. We are satisfied that the conduct of the respondent-wife in this case is of such a nature so as to completely disentile the respondent for any alimony from the appellant. The fact also remains that the respondent-wife has not filed any appeal against the Judgment and Decree, passed by the Court below and she appears to have accepted the decree of divorce. 12. In view of the aforementioned discussions, we find that the respondent wife is not entitled to any maintenance from the appellant, and accordingly, the part of the impugned Judgment directing the appellant to make payment of Rs. 1,200/- per month to the respondent-wife for maintenance of the respondent and her daughter, or to make the payment of one lump sum amount of Rs. 2,00,000/- in lieu of monthly maintenance, cannot be sustained in the eye of law. We, accordingly, set aside that part of the impungned Judgment and Decree dated 6th of December, 2007, passed by the learned 1st Additional District Judge, Garhwa, in Matrimonial (Divorce) Case No. 7 of 2003, but confirm the decree of divorce, passed in favour of the appellant. 13. This appeal is, accordingly, allowed in the aforesaid terms.