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2016 DIGILAW 866 (JHR)

Tulsi Mahto v. Renu Devi

2016-05-18

ANANDA SEN, D.N.PATEL

body2016
JUDGMENT : D.N. Patel, J. F.A. No. 71 of 2013 1. This First Appeal has been preferred by the original applicant of Title Matrimonial Suit No. 118 of 2007. Appellant is the husband who had preferred an application under Section 13(1)(b) of the Hindu Marriage Act, 1955 for dissolution of the marriage between this appellant and the respondent-wife mainly on the ground of desertion by wife and her illicit relationship with several persons who were residing in the nearby house of the appellant. 2. Counsel for the appellant submitted that the marriage between this appellant and the respondent was solemnized on 31st July, 1987 and as this appellant was serving at Howrah in Railway, the respondent was also staying with him at Howrah (West Bengal) and they continued to stay together for approximately 20 long years, but, thereafter, she developed illicit relationship with several persons who were residing in the neighbourhood and when this fact was brought to her notice, she left the house of this appellant. Thus, the desertion was by the respondent-wife since there were illicit relationships of this respondent with several persons who were residing nearby the house of this appellant. Three witnesses have been examined by the appellant and they all supported these two facts. This aspect of the matter has not been properly appreciated by the Principal Judge, Family Court, Bokaro while dismissing the application preferred by this appellant. Counsel for the appellant has also relied upon the decision rendered by Hon'ble Supreme Court in the case of K. Srinivas Rao vs. D.A. Deepa, (2013) 5 SCC 266 and has submitted that if this separation has created an unbridgeable distance, or, has irretrievably broken down, or, if the marriage is beyond repair on account of bitterness, or, where the marriage is dead for all the purposes, then it cannot be revived by the Court's verdict and, hence, the judgment and order passed by Principal Judge, Family Court, Bokaro, deserves to be quashed and set aside and the divorce application preferred by this appellant may kindly be allowed. 3. Counsel for the respondent submitted that for 20 long years the respondent has resided with this appellant at Howrah after the marriage between the two. 3. Counsel for the respondent submitted that for 20 long years the respondent has resided with this appellant at Howrah after the marriage between the two. As the appellant was staying at Howrah and as he was serving in Railway, there was no reason for the respondent to leave the house of this appellant, but, as this appellant had developed illicit relationship with his Bhabhi, she was brought at Village Kasmar, District Bokaro and the appellant also left Village Kasmar (Bokaro) leaving the respondent at the village. This phenomenon has taken place and she stayed at Village Kasmar (Bokaro) for some times and, thereafter, as the husband had gone back to Howrah leaving the respondent at Village Kasmar (Bokaro), she had no option but to return to her parental house. Thus, there is no desertion by the respondent, rather, the appellant has deserted this respondent. These facts have been proved from the evidence on record. Moreover, it is submitted by the counsel for the respondent that this appellant has already solemnized one more marriage with another lady during the subsistence of the first marriage with the respondent. This evidence has also been given by the witnesses of the respondent. It is also submitted by the counsel for the respondent that the appellant cannot be paid premium for desertion of his wife. In fact, this appellant has deserted the respondent and, therefore, the ratio of the decision cited by the counsel for the appellant is not applicable to the facts of the present case. It is also submitted by the counsel for the respondent that the allegations levelled by the appellant have not been proved by any of the witnesses. These aspects of the matter have been properly appreciated by the learned Principal Judge, Family Court, Bokaro while dismissing the application preferred by this appellant and no error has been committed by the learned trial Court in dismissing the said application and, hence, this First Appeal may not be entertained by this Court. Reasons 4. Having heard learned counsels for both sides and looking to the evidences on record, we see no reason to entertain this First Appeal No. 71 of 2013 mainly for the following facts and reasons:- (i) The marriage was solemnized between this appellant and the respondent on 31st July, 1987. Reasons 4. Having heard learned counsels for both sides and looking to the evidences on record, we see no reason to entertain this First Appeal No. 71 of 2013 mainly for the following facts and reasons:- (i) The marriage was solemnized between this appellant and the respondent on 31st July, 1987. As this appellant was serving in Indian Railways at Howrah, State of West Bengal, the respondent had started living with this appellant at Howrah for 20 long years. It is alleged by this appellant that the respondent started developing illicit relationships with persons who were residing in the nearby vicinity. For proving this allegation, this appellant has examined three witnesses who are Kunti Devi, Munshi Mahto and the appellant himself. We have gone through the evidences of these three witnesses with their cross- examination. This appellant has failed to prove the allegation of illicit relationship of the respondent with several persons in the nearby vicinity at the residence of this appellant. Looking to the cross-examination of these witnesses, they were unable to given name of any of these persons, though, the appellant was staying at that place since last 20 years long. Bare assertion has got no value in the eyes of law. (ii) Further, it appears from the evidences on record, that the respondent was staying with the appellant since last 20 years after the marriage was solemnized. There was no reason for the respondent to leave the appellant-husband. On the contrary, it appears from the evidences of the case that this appellant brought the respondent from Howrah (West Bengal) to Kasmar (Bokaro) in the State of Jharkhand and thereafter husband returned to Howrah leaving his respondent-wife at Village Kasmar (Bokaro). This proves that this appellant has deserted the respondent. (iii) It further appears from the facts of the case that once the respondent was left at Village Kasmar (Bokaro) by the appellant-husband and the appellant-husband had returned at Howrah (West Bengal). Now, the respondent, being deserted by her husband was living without her husband and therefore, she had gone at her parental house. Thus respondent had no option but to stay at her parental house. (iv) It further appears from the evidences on record that this appellant has married with another lady, namely Sitara Devi @ Sita Devi, daughter of Narayan Prajapati of Village Tulmul, District - Bokaro. Thus respondent had no option but to stay at her parental house. (iv) It further appears from the evidences on record that this appellant has married with another lady, namely Sitara Devi @ Sita Devi, daughter of Narayan Prajapati of Village Tulmul, District - Bokaro. These facts have been stated by the witnesses examined by the respondent. (v) It further appears from the evidences of the case that the appellant has failed to prove the desertion, nor this appellant could prove the illicit relationship of the respondent with anyone. Thus, both the grounds for getting divorce are not proved. Therefore, no error has been committed by the Principal Judge, Family Court, Bokaro in dismissing the application preferred by this appellant for getting divorce with the respondent under Section 13(1)(b) of the Hindu Marriage Act, 1955. (vi) Counsel for the appellant has relied upon a decision rendered by Hon'ble Supreme Court in the case of K. Srinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226 especially in paragraph 30 thereof. Looking to the facts of the present case it appears that this respondent had stayed with the appellant for 20 long years after the marriage and she had no reason to leave the house of the appellant-husband. Also it appears from the facts of the case that this appellant brought the respondent from Howrah (West Bengal) to Village Kasmar (Bokaro), State of Jharkhand and, thereafter, the appellant returned to Howrah leaving his wife- respondent at Village Kasmar. This reflects that this appellant has deserted the respondent. Moreover, this appellant has married another lady during subsistence of the first marriage with this respondent. These three facts are remarkably different from the facts of the aforesaid reported decision and, hence, this appellant cannot be given premium to own wrong, as he has deserted his respondent-wife and, hence, the ratio of the aforesaid judgment is not applicable to the facts of the present case. 5. As a cumulative effect of the aforesaid facts and reasons and the evidences on record, no error has been committed by the Principal Judge, Family Court, Bokaro in dismissing Title Matrimonial Suit No. 118 of 2007. Therefore, there is no substance in the First Appeal and the same is hereby dismissed. I.A. No. 3685/2014 6. 5. As a cumulative effect of the aforesaid facts and reasons and the evidences on record, no error has been committed by the Principal Judge, Family Court, Bokaro in dismissing Title Matrimonial Suit No. 118 of 2007. Therefore, there is no substance in the First Appeal and the same is hereby dismissed. I.A. No. 3685/2014 6. This Interlocutory Application has been preferred by the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 for ad-interim maintenance flatly at the rate of Rs. 25000/- per month from the month January, 2007 and the cost of litigation at Rs. 30000/- and journey expenses at Rs. 5000/-. 7. In view of the reasons stated herein above for dismissal of the First Appeal No. 71 of 2013 and also looking to the interim order passed by this Court dated 8th April, 2015, this Court has already directed Senior Divisional Commercial Manager, Eastern Railways, Howrah (West Bengal) to deduct Rs. 10000/- from the salary of this appellant and to deposit the same in the bank account of the respondent in a nationalised bank viz. Bank of India, Kasmar branch, District Dhanbad, State of Jharkhand, having bank account No. 480710110004421. The interim relief granted is made absolute. It appears that the said Senior Divisional Commercial Manager, Eastern Railways, Howrah has deducted Rs. 10000/- from the salary of this appellant only for one month i.e. September, 2015. It further appears that the order dated 8th April, 2015 clearly mentioned in paragraph 8 that this arrangement will continue till further order. Therefore, every month the aforesaid amount of Rs. 10000/- was to be deducted from the salary of this appellant to be deposited in the bank account of the respondent, but, the said Senior Divisional Commercial Manager has failed to obey this order of the Court. Railway authorities have not filed any Interlocutory Application for modification of the order. The Railway authorities cannot favour this appellant-husband. The Railway authorities cannot give a stay upon the order passed by the Division Bench of this Court on their own. The Railway authorities have grossly violated the order of this Court deliberately. 8. I.A. No. 3685 of 2014 stands disposed of. I.A. No. 3609 of 2015 9. This Interlocutory Application has been filed by the appellant for modification of the order dated 8th April, 2015 passed by this Court. 10. The Railway authorities have grossly violated the order of this Court deliberately. 8. I.A. No. 3685 of 2014 stands disposed of. I.A. No. 3609 of 2015 9. This Interlocutory Application has been filed by the appellant for modification of the order dated 8th April, 2015 passed by this Court. 10. Counsel for the appellant submitted that in a maintenance application preferred by the respondent, the learned trial Court has passed an order of monthly payment at Rs. 7000/-. Counsel for the appellant accepted that only for the month of June, 2015 that amount has been paid and nothing beyond this has been paid by this appellant, as stated by the counsel for the respondent-wife. Thus, this appellant is not obeying the order of this Court regarding payment of Rs. 10000/- per month nor he is obeying the order of the trial Court also. 11. We, therefore, dismiss I.A. No. 3609 of 2015. At this stage, it is submitted by the counsel for the appellant that it was not the duty of the appellant to make payment of Rs. 10000/- but, the Railway authorities were liable to deduct of Rs. 10000/- per month. He was ordered to make payment of maintenance to his own wife. The facility was given by this Court that from salary the amount must go directly to the bank account of the respondent, but, the appellant was aware that the Railway authorities have stopped deducting the amount of Rs. 10000/-. In that eventuality, the appellant shall have to make payment of the monthly maintenance as per the order of this Court. I.A. No. 3609 of 2015 is dismissed. 12. The respondent No. 2 shall explain to this Court why action should not be taken for breach of an order dated 8th April, 2015. 13. As this matter has been disposed of, Registrar General of this Court is directed to enlist this matter only for the purpose of taking action against respondent no. 2 on 12th February, 2015. I.A. No. 3616 of 2015 14. This Interlocutory Application has been filed by the respondent for immediate implementation of the order dated 8th April, 2015 whereby the appellant was directed to make ad interim maintenance of Rs. 10000/-. 15. In view of the aforesaid orders passed in this case, this I.A. No. 3616 of 2015 stands disposed of.